Friday, August 19, 2011

One wrong leads to another

One sentencing principle that regularly makes an appearance in appellate judgments is that of parity, which states that it is appealable error where the sentences between co-offenders are so different (or not different enough) as to create a "justifiable sense of grievance". Where all co-offenders are sentenced at the one time, parity arguments seem to me to have particular potency, as it indicates that a single judge has failed to adopt a consistent approach to sentencing co-offenders, or alternatively, has failed to recognise the significant differences between the sentences that are appropriate for different co-offenders. But parity is not only relevant when all co-offenders are sentenced at once. It applies equally, though with more difficulty, when several co-offenders are sentenced by separate judges.

Recently though, courts have grappled with the question of how to deal with a parity ground of appeal when the comparison sentence is inadequate and the offender received an appropriate disposition. Can an offender be said to have a justifiable sense of grievance for not receiving a manifestly inadequate sentence, such as the one his co-offender received? Regrettably, the answer is yes.

Wednesday, August 10, 2011

Heeman, Pato and Grixti - Three recent sentencing decisions

Justices Harper and Hansen have recently released a spate of sentence appeal decisions, three of which warrant special attention.

Grixti v R [2011] VSCA 220
Grixti started as an appeal against sentence for a cannabis cultivation, but turned into an appeal against sentence on the basis of double punishment, as the offender was sentenced (following a plea of guilty) for both cultivating cannabis and possessing the product of that cultivation. The problem arose because the prosecution double-counted some harvested cannabis from earlier planets as both part of the cultivation (along with 39.75kg found at the time of arrest) and separately providing the basis for a charge of possession (which weighed 5.43kg - Somehow the plea was conducted on a total amount of 45.42kg, whereas the sum of those two values is 45.18 - It is not clear where the additional 240g came from). Prosecution and defence solicitors really need to be careful when negotiating pleas of guilty to avoid this kind of thing. It clogs up the appellate system and really is a basic error. While the prosecution ran an argument on the appeal that the possession related to distinct cannabis, this was hampered by the statement on the plea that "the dried cannabis the subject of count 3 ‘was harvested material from the crop’." The court held:
That is reasonably to be taken as a concession that the cannabis the subject of count 3 was harvested from the plants the subject of count 1 during the cultivation period of 1 April to 14 July alleged in count 1. By his plea and conviction on count 1, the appellant admitted cultivating cannabis in the relevant period, including the cannabis which he harvested that became the subject of count 3. The total weight of the cannabis cultivated was 45.42 kilograms, which included the 5.43 kilograms of dried cannabis the subject of count 3. There was no suggestion that any of the cannabis recovered, whether as living plants or dried cannabis, was cultivated outside the period charged in count 1.
 Where there are distinct factual bases, the prosecution will need to be careful to clearly articulate that basis. In this case, I suspect the prosecution meant to submit the dried cannabis came from an earlier crop, which is couldn't establish beyond reasonable doubt, whereas the cultivation charge related only to the cannabis currently being grown. However, the difference in weights made this argument more difficult to follow, and the 5.67kg difference between the plant weight and the factual basis of the cultivation charge made the limits of the cultivation charge hard to identify.

Heeman v R [2011] VSCA 221
Heeman is a case about parity between co-offenders (or, strictly, maintaining appropriate levels of disparity between co-offenders based on differences in circumstances). The Court decided that:
In my opinion the arguments put forward on behalf of the appellant do demonstrate that her position was such as to warrant a greater difference in the sentences which were imposed upon each, but in the particular circumstances of this case, I think that the difference can be appropriately represented by a reduction in the appellant’s non-parole period from 20 months to 19 months. I propose, therefore, to allow the appeal to the extent that the non-parole period should be reduced as I have indicated; but the total effective sentence remain at three years and three months.
Really? Decisions like this undermine the statements about preserving a sentencing judge's discretion, the existence of a range of correct sentences, and the need to avoid tinkering. After cases like this, you have to wonder whether there should really be only one ground of appeal against sentence - That it was outside the range reasonably open to the judge, and everything else is just an explanation for why that happened.

Pato v R [2011] VSCA 223
Pato concerns the application of the Verdins principles. The offence involved serious, alcohol-fueled violence against the offender's de facto partner. The offender relied on a psychiatric report which disclosed longstanding depression, extensive alcohol use and poor anger management. The offender's counsel relied on the Verdins principles to moderate the sentence and the judge held that:
Mr Pato, you had consumed large quantities of alcohol on this night and, to put it bluntly, you lost it. Mr Pato, having found that you were suffering severe depression I propose to moderate the sentence that I otherwise may have imposed, that is in accordance with Verdins.
This was the extent of any discussion of Verdins. The Court of Appeal held that this was insufficient and that the judge needed to do more to explain how the Verdins principles were relevant:
The difficulty is that the judge needed to go further and explain how the appellant’s impaired mental functioning was relevant to the particular factors in Verdins. Unfortunately he merely quoted passages from the report and stated that, having found the appellant was suffering severe depression, he proposed to ‘modify’ the sentence that he otherwise may have imposed, in accordance with Verdins. There was thus no indication as to which of the six factors in Verdins were relevant and the relative weight they received.
In a system of intuitive synthesis, explaining with any precision how the six different factors identified in Verdins actually impacts on the sentence is always going to be a difficult process, though it is likely that the court was looking for some sort of quantification, even if that quantification was vague by saying that the judge was moderating the sentence "somewhat", "slightly" or "significantly".

Importantly, the Court of Appeal explicitly noted the new statutory provisions on sentence appeals; s281 of the Criminal Procedure Act 2009, which requires identification of error and satisfaction that a different sentence should be imposed. While this provision was, according to the explanatory material, meant to codify existing practice, it is interesting to see the court explicitly note the new provisions and the need to consider the two questions separately.