McMillan v The Queen [2020] VSCA 189 (27 July 2020)

Last Updated: 27 July 2020

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0159

PATRICK McMILLAN	Applicant

v

THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2020
DATE OF JUDGMENT:	27 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 189
JUDGMENT APPEALED FROM:	DPP v McMillan [2019] VCC 1115 (Judge Lyon)

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CRIMINAL LAW — Appeal — Sentence — Armed robbery, aggravated carjacking, reckless conduct endangering serious injury, being a prohibited person in possession of a firearm and imitation firearm, and associated charges — Total effective sentence of 14 years and 11 months’ imprisonment with non-parole period of 10 years and 4 months — Error as to maximum penalty for reckless endangerment — Parity — Totality — Whether orders for cumulation infringe totality — Whether double punishment on firearm and imitation firearm charges — Appeal allowed — Resentenced to a total effective sentence of 13 years and six months’ imprisonment with non-parole period of 9 years.

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APPEARANCES:	Counsel	Solicitors

For the Applicant	Mr P Smallwood and Mr J Connolly	James Dowsley & Associates

For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA

KYROU JA

T FORREST JA:

Charges, sentences and grounds of appeal

1 On 9 April 2019, the applicant pleaded guilty before a judge in the County Court to armed robbery^[1] (four charges — charges 2, 3, 4 and 5); aggravated carjacking^[2] (two charges — charges 10 and 12); reckless conduct endangering serious injury^[3] (one charge — charge 13); common assault^[4] (one charge — charge 9); being a prohibited person in possession of a firearm^[5] (one charge — charges 6); being a prohibited person in possession of an imitation firearm^[6] (one charge — charge 8); theft^[7] (two charges — charges 1 and 11); and handling stolen goods^[8] (one charge — charge 7). He also pleaded guilty to summary charges of unlicensed driving^[9] (two charges — summary charges 14 and 18), fraudulently using registration plates^[10] (summary charge 19) and dealing with property suspected to be the proceeds of crime^[11] (summary charge 20).

2 Following a plea, the judge sentenced the applicant to a total effective term of 14 years and 11 months’ imprisonment, with a non-parole period of 10 years and four months, in accordance with the following table:

Charge	Offence		Sentence	Cumulation
1	Theft		12 months	3 months
2	Armed robbery		4 years	8 months
3	Armed robbery		4 years	8 months
4	Armed robbery		4 years	8 months
5	Armed robbery		4 years and 11 months	Base
6	Prohibited person in possession of firearm		2 years and 3 months	12 months
7	Handling stolen goods		9 months	1 month
8	Prohibited person in possession of imitation firearm		1 year and 9 months	10 months
9	Common assault		2 years	7 months
10	Aggravated carjacking		5 years	1 year and 8 months
11	Theft		9 months	1 month
12	Aggravated carjacking		4 years and 6 months	1 year and 6 months
13	Reckless conduct endangering serious injury		4 years and 6 months	2 years
Summary	Unlicensed driving [charge 14]		2 months	—
Summary	Unlicensed driving [charge 18]		3 months	—
Summary	Fraudulent use of registration plates		2 months	—
Summary	Dealing with proceeds of crime		2 months	—
Total effective sentence		14 years and 11 months’ imprisonment
Non-parole period		10 years and 4 months’ imprisonment
Section 6AAA statement		19 years’ imprisonment with 14 years and 8 months non-parole
Other orders		Forfeiture order; forensic procedure order; licence cancellation and disqualification from obtaining a licence for 5 years

3 The applicant now seeks leave to appeal against his sentence on four grounds as follows:

Sentencing error arose as a consequence of the prosecution proceeding with, and a sentence being imposed on, summary charge 18.
The sentences imposed on charges 3 and 5 offended the principle of parity, in circumstances where it was Heyfron who:

(a) slashed Al-Sharifi across the face (charge 3); and
(b) stabbed Hussein multiple times (charge 5).

The orders for cumulation imposed resulted in a total effective sentence that offended the principles of concurrency and totality, and — with respect to the orders for cumulation made on charges 6 and 8 — disclosed an element of double punishment.
Sentencing error arose as a consequence of the applicant having been sentenced on the basis that the maximum penalty that applied to charge 13 (reckless conduct endangering serious injury) was 10 years, when the maximum penalty that in fact applied to that charge was 5 years.

4 For the reasons that follow, leave to appeal should be granted and the appeal allowed. The applicant should be resentenced in the manner set out below.^[12]

The applicant’s offending

5 In order to understand the issues raised by the grounds, it is necessary to set out the applicant’s appalling offending in moderate detail. It was described in the Summary of Prosecution Opening as follows:

Charge 1 – Theft of Holden Commodore GTS
Charge 7 – Handle stolen goods.
Related summary offences – charge 14 unlicensed driving

On Tuesday 21 November 2017 at about 7.14 am [the applicant] was depicted in CCTV footage at the Coles Express Service Station situated at 213 Glenroy Road, Glenroy. He was the driver and sole occupant of a red Commodore GTS sedan bearing registration plates ZLY-220. Those plates had been stolen from a vehicle in Wantirna South between 7.00 pm on Saturday 18 to 7.00 am Sunday 19 November 2017 (handle stolen goods). This is believed to be the same stolen vehicle that was involved in offending later on 22 and 24 November 2017.
At the time [the applicant] was not licensed to drive. He had been the holder of a probationary licence but had been disqualified by the Melbourne Magistrates’ Court on 23 December 2015 for 12 months. After that time he failed to obtain a licence (related summary offence charge 14 – unlicensed driving).
Shortly after 1.00 am on Wednesday 22 November 2017, the co-offender Heyfron was the front passenger in a stolen, red coloured, 2016 Holden GTS Commodore sedan. The vehicle was being driven by [the applicant] in Bendigo Crescent, Thomastown.
Investigators determined that the Holden GTS had been legitimately registered as VJC-507. It had been stolen on 13 October 2017 from an address at 4 Marlborough Avenue, Camberwell. The car was stolen using a key stolen from the house during an aggravated burglary at that address on 12 October 2017. It was valued at about $70,000.00.

Circumstances leading to the commission of charges 2 to 5 – Armed Robbery

Just after approximately l.00 am on Wednesday 22 November 2017, Yusuf Yaminyilmaz, Munthatar Al-Sharifi, Mustafa Sidawai, Khoder Hussain and Hady Al-Harbiah were travelling together in a black Toyota Aurion Sedan ... in a westerly direction along Main Road, Thomastown. ...
As the Toyota passed the 7-Eleven convenience store on the corner of Main Road and Edgars Road, the stolen red Holden Commodore GTS sedan with black rims pulled out from the car park convenience store and began to tailgate them.
As Mr Yamanyilmaz approached the intersection of Bendigo Crescent and Avalon Way, he slowed down. The red Holden Commodore GTS sedan then pulled up along the right side of the Toyota. The co-offender Heyfron, who was sitting in the front passenger seat, pointed a handgun at the occupants of the Toyota. At the same time it is alleged that [the applicant] who was driving the vehicle pointed a sawn-off single barrel shot gun also in their direction.
While pointing the firearms at the occupants of the vehicle, [the applicant] and the co-offender were yelling and demanding that the occupants, ‘Get the fuck out of the car’.
As they were in fear of being shot, the occupants of the Toyota ducked down and Mr Yamanyilmaz accelerated away in an attempt to flee. As the Toyota drove away, a single gunshot was discharged by one of the offenders. The prosecution cannot establish to the requisite degree which offender fired the shot. The gunshot was heard by nearby residents.
The Holden continued to pursue the Toyota through a number of residential streets at a fast rate of speed, tailgating the vehicle and continuously attempting to pull alongside it.
Mr Yamanyilmaz inadvertently turned into Yuonga Court, Lalor, which was a dead-end street. The Holden Commodore followed the Toyota.
Mr Yamanyilmaz stopped along a shared driveway ... and [the applicant] positioned the GTS sedan behind the Toyota, blocking any exit.
Khoder Hussain got out of the Toyota and raised both of his hands in the air. The other occupants of the Toyota exited the vehicle shortly after. [The applicant] and co-offender Heyfron immediately exited their vehicle and confronted the occupants of the Toyota by pointing the firearms they were holding at them. Two of the occupants of the Toyota, Al-Sharifi and Hussein observed that one of the offenders was holding a knife. The prosecution does not allege that [the applicant] had a knife.
[The applicant] and Heyfron continued to make demands for the occupants of the Toyota to give them money, mobile phones and wallets. In addition Al-Sharifi heard them demanding ‘gear’ .

Charge 2 – Armed robbery of Moustaffa Sidawi

[The applicant] assaulted Moustaffa Sidawi by striking him to the right side of his head with the butt of the shotgun, causing him to fall to the ground. Heyfron pointed a pistol at Sidawi whilst saying, ‘Give me your phone, give me your wallet’. The [applicant] then grabbed the victim’s ‘Burberry’ wallet and black Apple iPhone 8+ from his hand and walked away. The victim’s wallet contained between $150–250 AUD and various bank and identification cards.
Mr Sidawi sustained a laceration to the right side of his head and was transported to the Northern Hospital by Ambulance for medical treatment.

Charge 3 – Armed robbery of Munthatar Al-Sharifi

[The applicant] and Heyfron were also yelling at victim Al-Sharifi and demanded that he give them his money, wallet, mobile phone and ‘gear’. Shortly before he got out of his car, Mr Al-Sharifi threw his Apple iPhone and wallet into some bushes in an attempt to avoid them from being stolen.
He recognised Heyfron as a fellow classmate from his year level at Thomastown Secondary College in 2010, and in an attempt to defuse the situation, the victim has reminded him that they once went to school together.
[The applicant] and Heyfron then swung the firearms they were carrying at Mr Sharifi. Both continued to demand that Mr Sharifi give them his wallet and mobile phone. At that time Heyfron was holding a knife to the victim’s head and [the applicant] was pointing a shotgun at him.
Mr Sharifi then told them where he had thrown his possessions and Heyfron then walked to the bushes and retrieved the victim’s wallet, which contained approximately $200.00 cash and various bank and identification cards. [The applicant] was not able to locate the victim’s mobile phone, and it was later found at the scene.
After obtaining Mr Sharifi’s wallet, Heyfron slashed Mr Sharifi across the face, while [the applicant] hit him with the shotgun causing him to fall to the ground. Whilst Mr Sharifi was on the ground, [the applicant] kicked him to his body and continued to assault him with the shotgun.
The victim sustained a laceration across his face and subsequently took himself to the Northern Hospital for medical treatment.

Charge 4 – Armed robbery of Yusuf Yamanyilmaz

[The applicant] pointed the shotgun at the head of victim Yamanyilmaz, whilst demanding, ‘Where’s the money?’. Mr Yamanyilmaz told him that he didn’t have any money, however offered his car keys. [The applicant] did not take the car keys, but continued to assault Mr Yamanyilmaz by striking him with the butt of the shotgun to the left side of his head, just behind his ear. This caused Mr Yamanyilmaz to fall to the ground. As he fell his wallet, which contained approximately $30 and various bank and identification cards, fell out of his pocket. This wallet was subsequently taken by the offenders.
As a result of the assault, Mr Yamanyilmaz sustained a haematoma to his head. As he fled from the scene, he tripped over and fractured his left elbow. It is not alleged that this fracture was a direct result of the physical assault committed by [the applicant]. ...

Charge 5 – Armed robbe1y of Khoder Hussein

Heyfron assaulted Khoder Hussein by stabbing him multiple times with a knife to his left arm. This caused him to fall to the ground. While he was on the ground, he was further assaulted and stabbed by Heyfron to his leg and stomach.
[The applicant] also assaulted Mr Hussein by hitting him over his head with the butt of the shotgun on multiple occasions.
Mr Hussein sustained multiple stab wounds to his body and was required to be transported by ambulance to the Northern Hospital for medical treatment. He was required to undergo surgery in order to repair the injuries sustained to his left arm and leg and it is unknown if further operations will be required or whether he will regain the full use of his hand.
A further victim, Al-Harbiah was not injured ...

Charge 6 – Being a prohibited person in possession of a firearm

As noted above, [the applicant] was armed with a sawn off shotgun throughout the offences. By virtue of his criminal history he is a ‘prohibited person’.

...
Charge 7 – Handle stolen goods

The number plates that had been attached to the Commodore ... had been stolen between 7.00 pm on Saturday 18 and 7.00 am on Sunday 19 November 2017 from a car in Wantirna South.

Related summary offences
Charge 14 – unlicensed driving

Between 21–24 November 2017 [the applicant] did not hold a drivers’ licence.

Charge 19 – Fraudulent use of plates

At about 10.33 am on 23 November 2017 CCTV footage at Coles Express Service Station at 945–957 Pascoe Vale Road, Jacana, captured [the applicant] driving and being the sole occupant of the red Commodore bearing plates XHA-337 which were stolen from a 2009 Fiat 500 coupe.

Charge 20 – Deal with suspected proceeds of crime

A number of ID cards and bank cards were located. This excludes the stolen items covered in the armed robbery charges.

...
Further offending – 24 November 2017

On Friday 24 November, at approximately 4.30 pm, [the applicant] was driving in the Greensborough area in the stolen, red coloured, 2016 Holden GTS Commodore sedan with stolen number plates ... affixed to the rear and front.
The plates that had been attached to the Commodore ... had been stolen between l.00 am and 10.00 am on 24 November 2017 from a white coloured 2017 Toyota Corolla sedan at 52 Fitzgerald Road, Essendon.
[The applicant] was driving the vehicle erratically and was observed by an off duty police officer, First Constable Gacevski, who recognised that the vehicle was alleged to have been involved in an incident on 22 November 2017.
First Constable Gacevski followed the Commodore onto the Western Ring Road where he rang ‘000’ in relation to the erratic driving. He continued to follow it into the Glenroy area.
In Melbourne Avenue, Glenroy, [the applicant] pulled over and First Constable Gacevski drove past him. [The applicant] then accelerated aggressively and pulled up next to the driver side of the vehicle being driven by First Constable Gacevski. [The applicant] yelled at First Constable Gacevski and then continued past First Constable Gacevski’s vehicle before turning in front of it and braking.

Charge 8 – Prohibited person in possession of an imitation firearm
Charge 9 – Common assault (First Constable Gacevski)

[The applicant] exited his vehicle and approached First Constable Gacevski. He then pulled out a black coloured handgun and pointed it at First Constable Gacevski and yelled, ‘Why the fuck are you following me?’. He was approximately one metre from First Constable Gacevski’s driver’s window with the handgun pointed directly at his head.
First Constable Gacevski drove around [the applicant] and attempted to get away. [The applicant] got back in the Holden GTS and began following First Constable Gacevski. For about five minutes he drove the Commodore through back streets around Melbourne Avenue in a manner that was intended to intimidate First Constable Gacevski before he turned off onto Glenroy Road.
The Victoria Police Air Wing took up position in the sky above [the applicant], who continued driving dangerously throughout the streets of Glenroy and neighbouring suburbs. He drove on the incorrect side of the road, through red traffic control signals, and red signals at railway crossings.
[The applicant] was followed to Hutton Street, Thornbury, where at approximately 5.33 pm, he stopped at a BP Service Station where he exited the vehicle and put $20 worth of petrol into the stolen GTS.

Charge 13 – Reckless conduct endangering serious injury

[The applicant] continued to drive dangerously and endangering the lives of the general public.
The Police Air Wing followed him to Norman Street, Ivanhoe.

Charge 10 – Aggravated carjacking

At approximately 5.40 pm, [the applicant] stopped at the Ivanhoe train station, exited the Holden GTS and ran towards a red coloured 2016 Jaguar XE sedan ... He ran towards this vehicle with his handgun raised and pointed at the lone female driver, Delores Giannopolous.
[The applicant] then opened the driver’s door to this vehicle and leaned over the driver trying to grab the keys, which were in the centre console. Ms Giannopolous managed to throw the keys out onto the road. [The applicant] ran to the keys and picked them up off the ground and returned to Ms Giannopolous. He then struggled with her and grabbed her by the hair, pulled her out of the vehicle and threw her onto the road. Ms Giannopolous returned to the car and grabbed the gun that was between [the applicant’s] legs. He pushed her hand away and continued trying to start the car.
While they were struggling, Ms Giannopolous’ husband arrived at the station and attempted to assist her, and [the applicant] pointed the handgun at him causing him to back off.
At about that time two people attended the station near the incident and attempted to intervene and help Ms Giannopolous. One of those people, Steven Karantazoulis, grabbed the driver’s door, while the other, Jordyn Ellis, was standing in front of the bonnet to stop [the applicant] from driving away. [The applicant] then pointed the handgun at Steven Karantazoulis and Jordyn Ellis and they backed away from the car.
A number of people observed what took place at the station and were terrified by what they observed. ...

Charge 13 – Reckless conduct endangering serious injury (continued)

[The applicant] then reversed the Jaguar and collided with a white coloured 20I7 Mitsubishi Pajero wagon ... which was parked behind the Jaguar. He then accelerated forward at a fast rate of speed and continued to drive dangerously and endanger the lives of the general public. He drove the Jaguar onto the Eastern Freeway and travelled at about 200 kmh in a 100 kmh zone.
[The applicant] then drove to the Doncaster Shopping Centre. The Police Air Wing were able to follow him until he drove into the car park and the Air Wing lost sight of him.

Charge 11 – Theft of motor car
I04. [The applicant] drove into the lower ground car park to the Magic Hand Car Wash. He pulled up next to the car wash and got out of the Jaguar, and ran through the car wash. He then entered a grey coloured 2016 Mercedes Benz GLC250 coupe ...

The keys were in the vehicle and [the applicant] drove the Mercedes over a gutter concrete divider separating the car park from the car wash, and then drove on the incorrect side of the lane before he collided with a white coloured 2011 Toyota Hi Ace van ...
[The applicant] then reversed, and drove around the van and back onto Doncaster Road. Once he was back onto Doncaster Road, the Police Air Wing were able to resume their observation of [the applicant].
After leaving the Doncaster Shopping Centre [the applicant] drove the stolen Mercedes through Glen Waverly. As he was driving along Railway Parade Glen Waverly he came into contact with the driver’s side mirror of a black Volkswagen Tiguan ... being driven by Zhiyang Luo. He also collided with a vehicle being driven by Ravindra Gooneratne and the intersection of O'Sullivan Road and Euneva Street in Glen Waverley.
[The applicant] drove the stolen Mercedes wagon to Chadstone Shopping Centre. He remained under the observation of the Victoria Police Air Wing until he drove into the car park.

Charge 12 – Aggravated carjacking
l09. [The applicant] then drove the Mercedes Benz to Level P2 in the car park. He stopped in front of a blue coloured 2003 Nissan Skyline sedan ... He exited the Mercedes and walked toward the driver of the Nissan with his handgun in his right hand and pointed at the driver. He was repeating, ‘Get out, get out, get out’, over and over again.
110. The driver, his girlfriend and another woman exited the Nissan immediately, and [the applicant] got into the driver’s seat and drove the Nissan Skyline out of the car park and onto Dandenong Road.

The Police Air Wing observed [the applicant] drive onto Dandenong Road but were instructed to disengage.

Charge 13 – Reckless conduct endangering serious injury - continued
112. [The applicant] then drove the Nissan dangerously in a manner that endangered the lives of the general public who were on Dandenong Road.

[The applicant] drove to 850 Pascoe Vale Road and parked in the driveway.

Arrest by SOG

At approximately 8.50 pm on 24 November 2017 he was arrested by the Special Operations Group (SOG), whilst sitting in the stolen Nissan Skyline at that location. A black handgun was located in the centre console of the Nissan.
Detectives from the Armed Crime Squad also attended at the arrest of [the applicant]. After his arrest he complained that he had been injured. He was subsequently conveyed to the Royal Melbourne Hospital for treatment under police escort.

Interview of [the applicant]

[The applicant] was interviewed ... on 25 November, 2017. He admitted that the car he was initially driving was a red GTS Holden Commodore.
He claimed to have no recollection of any of the events the day before. He also claimed to have been on a three to four week ‘bender’ taking crystal methamphetamine (ice), cocaine, gamma hydroxybutyrate (GHB) and alcohol.
[The applicant] was wearing the same clothes he was wearing during his offending on 24 November 2017. He was photographed in these clothes and they were seized. He was not able to remember any other details of what occurred apart from the helicopter following him in Glenroy as he was in psychosis and had blacked out. He confirmed that prior to the interview he had told investigators that he had been awake for about three weeks, and had been using ice, GHB, cocaine, Xanax and alcohol.

The co-offender Michael Heyfron

6 The applicant committed the armed robberies on 22 November 2017 with Michael Heyfron,^[13] who is of Koori heritage,^[14] and was then aged 20 years.^[15] Heyfron had a substantial criminal history^[16] (as does the applicant),^[17] and at the time of the robberies was in possession of an imitation handgun.^[18] In our view, there was not much to distinguish between Heyfron’s and the applicant’s involvement in the armed robberies.^[19] It was Heyfron, however, who slashed Mr Al-Sharifi across the face (whilst the applicant hit him with the shotgun)^[20] and stabbed Mr Hussein in the arm, stomach and leg^[21] (whilst the applicant struck him with the shotgun).

7 Following Heyfron’s pleas of guilty in the County Court to the four armed robberies; theft of the motor vehicle in which he and the applicant were driving; being a prohibited person in possession of an imitation firearm; and to offences relating to possession and use of bank cards stolen in the robberies; a judge sentenced him to a total effective sentence on four years’ imprisonment, with a non-parole period of two years.

8 On appeal by the Director of Public Prosecutions, however, Heyfron’s sentence was increased to six years and one month’s imprisonment, with a non-parole period of three years, in accordance with the following table:^[22]

Charge	Offence		Sentence	Cumulation
1	Theft of motor vehicle		6 months	—
2	Armed robbery		3 years and 6 months	6 months
3	Armed robbery		3 years and 6 months	6 months
4	Armed robbery		3 years and 6 months	6 months
5	Armed robbery		4 years and 6 months	Base
6	Prohibited person in possession of an imitation firearm		9 months	—
7	Obtaining property by deception		1 month	14 days
8	Obtaining a financial advantage by deception		1 month	14 days
Summary	Dealing with proceeds of crime		7 days	—
Total effective sentence		6 years and 1 month’s imprisonment
Non-parole period		3 years’ imprisonment
Section 6AAA statement		8 years and 6 months’ imprisonment with 6 years non-parole
Other orders		Forfeiture orders; licence cancellation and disqualification from obtaining a licence for 2 years

9 In resentencing Heyfron, this Court noted that the applicant was significantly older than he, and that it was the applicant who drove the stolen vehicle and had possession of the loaded shotgun.^[23] Moreover, Heyfron’s background was of ‘particular significance’. He grew up in ‘significantly dysfunctional and traumatic circumstances’,^[24] his ‘traumatic and dysfunctional upbringing, his post-traumatic stress disorder, and his offending’ being centrally relevant to a proper assessment of his subjective culpability for the offending.^[25] Heyfron’s post-traumatic stress disorder attracted Verdins^[26] considerations,^[27] and his youth was ‘a relevant and important operative factor’.^[28] He had also participated in a ‘sentencing conversation’ in the Koori Court.^[29]

10 Ultimately, the Court observed^[30] that

it is important that we make it plain that if it were not for the very substantial mitigating circumstances relating to [Heyfron’s] situation in this case, we would have sentenced him to a significantly longer term of imprisonment in respect of each of the four charges of armed robbery, and to a significantly longer total effective sentence and non-parole period. The sentences that we have imposed, by re-sentence, are, we consider, lenient, reflecting the weight of those subjective mitigating factors relevant to the circumstances of [Heyfron], and reflecting the importance of the principle that a person in the position of [Heyfron], with his unfortunate background, be accorded the appropriate opportunity to rehabilitate himself.

Concessions by the respondent

11 It is a lamentable fact that the prosecutor on the plea incorrectly informed the judge (both orally and in the written opening) that the maximum sentence on charge 13, reckless conduct endangering serious injury, was imprisonment for 10 years. In fact, the maximum sentence for the offence was fifty per cent less, five years’ imprisonment (a maximum sentence of 10 years’ imprisonment being applicable to the offence of reckless conduct endangering life under s 22 of the Crimes Act 1958). Equally lamentable is the fact that the applicant’s counsel on the plea did not correct the prosecutor’s error. The sentencing judge was entitled to adequate assistance — counsel at both ends of the Bar table had the duty to provide it — but, sadly, it was not forthcoming.

12 In the result, in his reasons for sentence the judge stated incorrectly that ‘Charge 13, reckless conduct endangering serious injury, carries a maximum of 10 years [imprisonment]’. Moreover, he imposed a sentence of four years and six months’ imprisonment on that charge — equating to 90 per cent of the available maximum — notwithstanding the applicant’s plea of guilty. In those circumstances, the respondent’s counsel^[31] realistically conceded that the judge’s error as to the available maximum sentence reopened the sentencing discretion — at least with respect to the sentence on charge 13 — including with respect to the degree of cumulation ordered. That concession was fairly and properly made, and should be acted upon.

13 At the outset of the hearing in this Court, the respondent’s counsel made the further concession that the cumulation ordered on the sentences on charges 6 and 8 was excessive. As will appear, we are also prepared to act on that concession.

14 Additionally, in written submissions the respondent’s counsel conceded that the sentence on summary charge 18, unlicensed driving, constituted double punishment. It was accepted that the conduct in charge 18 was ‘wholly subsumed’ in the conduct underlying charge 14 (as amended). We will also give effect to that concession.

15 Counsel for the respondent are to be commended for their perspicuous fairness. The Court derived considerable assistance from their written and oral submissions.

Ground 2: Parity

16 It is convenient to turn first to ground 2, which asserts that the sentences imposed on charges 3 and 5 offend the principle of parity, given that it was Heyfron who slashed Munthatar Al-Sharifi across the face (charge 3) and stabbed Khoder Hussein multiple times (charge 5).

17 The applicant was sentenced on charge 3 to four years’ imprisonment, and on charge 5 to four years and 11 months’ imprisonment. On those charges, Heyfron was sentenced respectively to three years and six months’, and four years and six months’ imprisonment. The applicant’s counsel submitted that, since the sentences imposed on the applicant were five months (in the case of charge 5) or six months (in the case of charge 3) longer than the sentences imposed on Heyfron, Heyfron’s use of his knife to slash or stab the victims is not reflected in the relative sentences imposed. So much, counsel submitted, reveals sentencing error, the sentences imposed on charges 3 and 5 offending the principle of parity.

18 We reject these submissions.

19 It will be remembered that, after obtaining Mr Sharifi’s wallet, Heyfron slashed Mr Sharifi across the face, whilst the applicant hit him with the shotgun causing him to fall to the ground. When Mr Sharifi was on the ground, the applicant kicked him to his body and continued to assault him with the shotgun.^[32] Plainly, in those circumstances there is little to distinguish the applicant’s and Heyfron’s role in the assault on the hapless Mr Sharifi. Both were complicit in a vicious and gratuitous attack, involving sustained violence.

20 It will also be remembered that although Heyfron stabbed Mr Hussein to his left arm, causing him to fall to the ground; and, while he was on the ground, stabbed his leg and stomach; the applicant also assaulted Mr Hussein by hitting him over his head with the butt of the shotgun on multiple occasions.^[33] Once more, there is little to distinguish the applicant’s and Heyfron’s role in the assault on Mr Hussein. As in the case of Mr Sharifi, both were complicit in a vicious and gratuitous attack, involving sustained violence. To our minds, that the applicant hit Mr Hussein repeatedly over the head with the butt of the shotgun as part of a continuing episode in which Heyfron stabbed him, does not diminish the objective gravity of the applicant’s offending vis-à-vis Heyfron’s. Their roles were roughly equal. The two were enthusiastic participants in a joint criminal enterprise marked by senseless brutality and sadism.

21 We note that in Heyfron, the Court observed^[34] that the applicant

was significantly older than [Heyfron]. It was [the applicant] who drove the vehicle, and who had possession of the loaded shotgun. While [Heyfron] readily participated in the offending — including in the violence inflicted on each of the victims of the armed robberies — it is clear that he could not be described as being the leader of the escapade. Nevertheless, there was no evidence that he was other than an equal participant in it with [the applicant].
Notwithstanding those considerations, the objective gravity of [Heyfron’s] offending in this case remained high. As senior counsel for [Heyfron] realistically accepted, the offending, that was the subject of charges 2 to 5, was very serious. The conduct of [Heyfron], and [the applicant], was entirely outrageous. It contravened the basic norms of ordinary civilised behaviour. It is particularly concerning that [Heyfron], and [the applicant], lay in wait, in their stolen vehicle, with weapons, seeking out an appropriate target to rob. To that extent, the offending involved a degree of planning and premeditation. In the absence of strong mitigating circumstances, the offences, that were the subject of charges 2 to 5, would ordinarily call for sentences of terms of imprisonment totalling at least twice the total effective sentence imposed on [Heyfron] in this case.

22 The applicant was older than Heyfron, and could not call in aid the significant matters that went in mitigation of Heyfron’s sentence.^[35] Quite clearly, those significant matters in mitigation justified the rather modest disparities in the impugned sentences.

23 Ground 2 is without substance.

Ground 3: Totality and double punishment

24 The applicant’s complaints under cover of ground 3 related solely to the orders for cumulation. None of the sentences imposed on the individual charges was impugned, the applicant’s essential complaint being that the orders for cumulation were such as to offend the principle of totality. Counsel relied principally on four factors: first, the applicant’s offending was all committed between 21 and 24 November 2017; secondly, there was a ‘temporal link and similarity’ between the offences committed on 22 November 2017; thirdly, there was also a temporal link and similarity between the offences committed on 24 November 2017; and, fourthly, the presumption of concurrency was not displaced.

25 Save for the orders for cumulation made with respect to the sentences on charges 6 and 8, however, we would not uphold the general contention that the orders for cumulation resulted in a total effective sentence which offended the principle of totality. We consider that — except as was conceded by the respondent’s counsel in relation to charges 6 and 8 — the cumulation ordered could not justifiably be criticised.

26 As will by now have been appreciated, counsel for the applicant singled out for particular attention the orders for cumulation made with respect to the sentences on charges 6 and 8. Among other things, the applicant’s counsel argued that the orders for the cumulation of 12 months of the sentence imposed on charge 6, and 10 months of the sentence imposed on charge 8, may be contrasted with the approach the Court took when sentencing Heyfron on charge 6 (being a prohibited person in possession of an imitation firearm). In Heyfron’s case, nine months’ imprisonment was imposed, to be served wholly concurrently with the other sentences imposed. Counsel for the applicant submitted that, since the applicant was sentenced on charges 6 and 8 to serve 22 months’ imprisonment in addition to the terms of imprisonment imposed on other charges, an element of double punishment was disclosed.

27 These submissions — based, as they are, on notions of parity — are not persuasive. We note that, although in Heyfron’s case no cumulation was ordered in relation to the sentence on charge 6, Heyfron’s charge 6 related to an imitation firearm — the applicant’s charge 6 related to a shotgun in working order which had been fired to terrorise the intended victims shortly before the armed robberies — and the sentence was, in any event, a merciful one. (And self-evidently, no parity issue can arises in relation to charge 8, since the applicant’s offending on charge 8 is entirely separate from Heyfron’s.)

28 In the peculiar circumstances of this case, however, we consider it proper to act upon the respondent’s concession that the cumulation ordered in relation to the sentences on charges 6 and 8 offended the principle of totality. With respect to charge 6 — being a prohibited person in possession of a firearm — the applicant’s possession (and use) of the shotgun in the armed robberies overlapped generally with his possession of the firearm as a prohibited person. As a result, there was a need to avoid doubly punishing the applicant. But there was also a need to give distinct recognition to the applicant’s status as a prohibited person, and his possession of the firearm beyond his possession and use of it in the course of the armed robberies. His possession of the firearm as a prohibited person otherwise than in the course of committing the armed robberies was distinct offending, meriting additional punishment (particularly in circumstances in which the applicant previously had been imprisoned for the same offence).^[36] All other things being equal, in the ordinary case an order for 12 months’ cumulation upon the base sentence such as made in this case could not be considered to be excessive. (Similar observations might be made about the sentence on charge 8, being a prohibited person in possession of an imitation firearm.)

29 Paying due regard, however, to the relatively large number of charges on the indictment and to the relatively confined period of possession alleged by the prosecution, and giving full weight to the respondent’s concession, we consider that we should uphold ground 3 in part. We will make orders with respect to cumulation of the sentences on charges 6 and 8 in substitution for those originally imposed.

Ground 1: Summary charge 18

30 Counsel for the applicant submitted that no sentence should have been imposed on charge 18, unlicensed driving.

31 Summary charge 14, unlicensed driving, had been amended from a single date to a ‘between dates’ charge, and was put on the basis that: ‘Between 21–24 November 2017 the [applicant] did not hold a drivers licence’. In his reasons for sentence, the judge referred to the facts that informed charge 14:

Charge one relates to the period from 21 November – 24 November 2017 when you drove a stolen GTS Holden Commodore. You were not licensed to drive at the time (summary charge 14).

32 On the other hand, the judge did not refer to the facts that informed summary charge 18. That charge was put on the basis that the applicant

at Glenroy on Friday the 24th of November, 2017 did drive a motor vehicle on a highway namely Bell Street without being the holder of a driver licence or permit authorising him to drive such motor vehicle and without being exempt from holding such licence or permit under the regulations.

33 Charge 14 embraced a four day period; and, although it seems clear that the charge was intended geographically to embrace the applicant’s driving in various suburbs, including Glenroy, Thomastown, Greensborough, Thornbury, Ivanhoe, Mount Waverly and others, unhappily the charge was not specifically amended to allege driving beyond Bell Street, Glenroy. By way of contrast, charge 18 was temporally limited to a single day, 24 November 2017, and was intended to be limited geographically to Bell Street, Glenroy.

34 In our opinion, there is no necessary double punishment in permitting convictions and sentences on both charge 14 and charge 18 to stand. We consider that — at least theoretically — it was open to impose convictions and sentences on both charges. At the risk of repetition, charge 18 was limited to a single day in a single place, whereas charge 14 included other driving over further days in different areas. On the other hand, it might be said that the conduct informing charge 18 was to a significant extent subsumed within the conduct on charge 14. Since, as we have indicated, the sentencing discretion will be re-opened as a result of the applicant’s success on ground 4, the convenient course — one agreed in by counsel — will be to dismiss charge 18 in accordance with s 76 of the Sentencing Act 1991.^[37]

Ground 4: Error as to maximum sentence on charge 13

35 In his reasons for sentence, the judge observed that

the Police Air Wing monitored your driving. Much of the driving was captured on video, which was played to the court. Charge 13 – reckless conduct endangering serious injury is a charge which covers the span of your driving on 24 November 2017. A charge of reckless conduct occurred over approximately a 75 minute period as you drove through the Glenroy — Thornbury area down through Chadstone to Springvale Road. Your driving took place on freeways roads and streets. In the course of your driving, you:

drove at high speeds of 151 km/h along Springvale Road and a breathtaking 201 km/h along the eastern freeway;
drove at times along the wrong side of the road, on the footpath and through a pedestrian crossing where a person was crossing and stopped because of your driving; and
drove through red traffic lights and against signals and signs causing traffic to stop as you weaved your way through passing cars dangerously, weaving through oncoming traffic and intersections where you entered and passed regardless of give way requirements.

I saw some 40 minutes of footage. I note that not all of these activities were conducted at high speed. Nevertheless, all your acts in combination and over the distance of travel showed your driving to be highly irresponsible and reckless. Your driving exposed countless drivers and pedestrians to the risk of serious injury. Remarkably, nobody was hurt.

And the judge also remarked:

As for your driving, the distance travelled and the length of time you drove, taking into account the matters I have outlined already makes this an extremely serious instance of a reckless conduct endangering serious injury. Again, as I have already averted to, your driving exposed countless members of the general public to your dangerous acts. The aerial footage makes it apparent that there were hundreds if not thousands of persons who you came into contact with by your driving. Nor can you take credit for the fact that no one was injured. It is apparent that the other drivers and people exposed to your conduct were forced to take countless evasive actions to avoid colliding with you.

36 The driving founding charge 13 was an outrage. It deserved stern punishment. As is clear, however, the judge sentenced the applicant on charge 13 having been misled into believing that the maximum sentence was 10 years’ — rather than five years’ — imprisonment. As is also clear (given that the maximum sentence is actually five years’ imprisonment), the sentence of four years and six months’ imprisonment imposed on the reckless endangerment charge fails to give adequate recognition to the applicant’s plea of guilty.

37 In these circumstances, ground 4 must succeed.

Conclusion

38 Leave to appeal against sentence must be granted and the appeal must be allowed. The sentence and order for cumulation on charge 13 must be set aside. In lieu, we would sentence the applicant to three years’ imprisonment on that charge, and order that 12 months of that sentence be served cumulatively.

39 We would also uphold ground 3 in part, and set aside the orders for cumulation made by the sentencing judge on charges 6 and 8. In substitution for them, we would order that 10 months of the sentence on charge 6, and seven months of the sentence on charge 8, be served cumulatively with the base sentence (and all other sentences of imprisonment).

40 The total effective sentence thus produced will be 13 years and six months’ imprisonment. Taking all relevant considerations into account — including the matters urged upon us by the applicant’s counsel with respect to the applicant’s depressive disorder, the circumstances of his confinement, his concern for his father and the like — we will fix a new non-parole period of nine years.

41 As we have mentioned, we will also dismiss summary charge 18.

42 All other orders and declarations of the County Court should be confirmed, and we will make an appropriate declaration of pre-sentence detention.

43 Our overall intention is set out in the following table:

Charge	Offence		Sentence	Cumulation
1	Theft		12 months	3 months
2	Armed robbery		4 years	8 months
3	Armed robbery		4 years	8 months
4	Armed robbery		4 years	8 months
5	Armed robbery		4 years and 11 months	Base
6	Prohibited person in possession of firearm		2 years and 3 months	10 months
7	Handling stolen goods		9 months	1 month
8	Prohibited person in possession of imitation firearm		1 year and 9 months	7 months
9	Common assault		2 years	7 months
10	Aggravated carjacking		5 years	1 year and 8 months
11	Theft		9 months	1 month
12	Aggravated carjacking		4 years and 6 months	1 year and 6 months
13	Reckless conduct endangering serious injury		3 years	12 months
Summary	Unlicensed driving [charge 14]		2 months	—
Summary	Unlicensed driving [charge 18]		Dismissed	—
Summary	Fraudulent use of registration plates		2 months	—
Summary	Dealing with proceeds of crime		2 months	—
Total effective sentence		13 years and 6 months’ imprisonment
Non-parole period		9 years’ imprisonment

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^[1] Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.

^[2] Crimes Act 1958, s 79A(1). The maximum penalty is 25 years’ imprisonment.

^[3] Crimes Act 1958, s 23. The maximum penalty is 5 years’ imprisonment.

^[4] Common assault is an offence at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 5 years’ imprisonment.

^[5] Firearms Act 1996, s 5(1). The maximum penalty is 10 years’ imprisonment.

^[6] Control of Weapons Act 1990, s 5AB(2). The maximum penalty is 10 years’ imprisonment.

^[7] Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.

^[8] Crimes Act 1958, s 88(1). The maximum penalty is 15 years’ imprisonment.

^[9] Road Safety Act 1986, s 18. The maximum penalty is 25 penalty units or 3 months’ imprisonment.

^[10] Road Safety Act 1986, s 72(1A). The maximum penalty is 60 penalty units or 6 months’ imprisonment.

^[11] Crimes Act 1958, s 195. The maximum penalty is 2 years’ imprisonment.

^[12] See [38] et seq.

^[13] See DPP v Heyfron [2019] VSCA 130 (Priest, Kaye and T Forrest JJA) (‘Heyfron’).

^[14] Heyfron, [19].

^[15] Heyfron, [3].

^[16] Heyfron, [18].

^[17] In his reasons for sentence, the judge summarised the applicant’s prior criminal history as follows:

Your criminal history dates back to 2006 when you were 21 years old. You have multiple appearances for dishonesty matters, driving, drug possession, assaults and reckless conduct endangering injury. You have prior convictions for assaulting police. Disturbingly, you have a prior conviction for possession of a controlled weapon and 3 prior convictions relating to possession of firearms. You were imprisoned on each of these firearms convictions.

^[18] Heyfron, [5].

^[19] Heyfron, [50].

^[20] See [5](27) above; Heyfron [9].

^[21] See [5](31) above; Heyfron [12].

^[22] Heyfron, [76].

^[23] Heyfron, [50].

^[24] Heyfron, [53].

^[25] Heyfron, [56].

^[26] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (‘Verdins’).

^[27] Heyfron, [60]–[61].

^[28] Heyfron, [63].

^[29] Heyfron, [66]–[69], [72].

^[30] Heyfron, [79].

^[31] The concession was made in writing by counsel who drew the Response to Applicant’s Written Case, and was confirmed orally by different counsel who appeared for the respondent in this Court. Neither were the prosecutor on the plea.

^[32] See [5](27) above.

^[33] See [5](31)–(32) above.

^[34] Heyfron, [50]–[51] (emphasis added).

^[35] See [9]–[10] above.

^[36] The applicant has prior convictions for possessing a prohibited weapon (2011) and for being a non-prohibited person possessing a handgun (2012), and two prior convictions for being a prohibited person in possession of a firearm (2015).

^[37] Section 76 provides:

76 Unconditional dismissal

A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) dismiss the charge.

Subsequent Judicial Consideration0