SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0224

TAYLER CHRISTIAN HAZELL	Appellant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	PRIEST and BEACH JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	16 November 2021	
DATE OF JUDGMENT:	17 November 2021	
MEDIUM NEUTRAL CITATION:	[2021] VSCA 313	
JUDGMENT APPEALED FROM:	[2020] VCC 84 (Judge Tinney)	

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CRIMINAL LAW – Sentence – Appeal – Aggravated burglary, armed robbery (2 charges), robbery (3 charges), threat to kill, theft (2 charges) and causing injury recklessly – TES of 6 years and 8 months, with NPP of 3 years and 10 months – Serious offending – Significant prior criminal history – Early plea of guilty – Background of significant disadvantage – Verdins principle 5 – Sentenced after serving 15 months for offending committed in NSW during same period – Totality – Whether sentence infringed principles of totality – Manifest excess – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors	
			
For the Appellant	Ms G Connelly	Greg Thomas Barrister and Solicitor	
			
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions	

Priest JA 
Beach JA:
1	The appellant pleaded guilty in the County Court to ten charges across two indictments (Indictment J13201971/CR-19-00437, which contained six charges relating to offences committed by the appellant on 4 September 2017;  and Indictment J13196518/CR-19-00438, which contained four charges relating to offences he committed on 6 September 2017).  In total, the appellant pleaded guilty to one charge of aggravated burglary, two charges of armed robbery, three charges of robbery, one charge of making a threat to kill, two charges of theft and one charge of recklessly causing injury.
2	On 14 February 2020, following a plea hearing conducted on 12 February 2020, the appellant was sentenced as follows:

INDICTMENT J13201971 / CR-19-00437	
Charge	Offence	Maximum	Sentence	Cumulation	
1	Theft (contrary to s 74 of the Crimes Act 1958)	10 years	2 months	Nil	
2	Aggravated burglary (contrary to s 77 of the Crimes Act 1958)	25 years	3 years and 6 months	Base	
3	Armed robbery (contrary to s 75A of the Crimes Act 1958)	25 years	3 years and 3 months	9 months	
4	Causing injury recklessly (contrary to s 18 of the Crimes Act 1958)	5 years	10 months	3 months	
5	Make threat to kill (contrary to s 20 of the Crimes Act 1958)	10 years	8 months	2 months	
6	Theft (contrary to s 74 of the Crimes Act 1958)	10 years	2 days	Nil	
Total Effective Sentence on Indictment J13201971:	4 years and 8 months	
INDICTMENT J13196518 / CR-19-00438	
Charge	Offence	Maximum	Sentence	Cumulation	
1	Armed robbery (contrary to s 75A of the Crimes Act 1958)	25 years	3 years and 6 months	Base	
2	Robbery (contrary to s 75 of the Crimes Act 1958)	15 years	14 months	4 months	
3	Robbery (contrary to s 75 of the Crimes Act 1958)	15 years	14 months	4 months	

4	Robbery (contrary to s 75 of the Crimes Act 1958)	15 years	14 months	4 months	
Total Effective Sentence on Indictment J13196518:	4 years and 6 months	
Order for cumulation on indictments:	2 years of the sentence on Indictment J13196518 was ordered to be served cumulatively on the sentence imposed on Indictment J13201971	
Total Effective Sentence (both indictments):	6 years and 8 months	
Non-Parole Period:	3 years and 10 months	
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	431 days	
Section 6AAA Statement:  10 years’ imprisonment with a non-parole period of 7 years	
3	On 10 September 2017, the appellant was arrested and charged in New South Wales for offending which he committed in that State on that day.  Before the appellant was sentenced in the County Court, he was sentenced in the New South Wales local court on the New South Wales offences (which included larceny, destruction of property, receiving stolen property, using an offensive weapon and preventing lawful detention) to a total effective of two years imprisonment, of which he served 15 months.
4	On 26 February 2021, a judge of this Court granted the appellant leave to appeal against the sentence imposed in the County Court.  The appellant’s grounds of appeal are as follows:
1.	The sentence infringes the totality principle.
2.	The total effective sentence is manifestly excessive.
3.	If the sentence discretion is reopened, the appellant would seek the opportunity to provide further material to the court as to the relevance and weight that should be given to his diagnosis of Borderline Personality Disorder in consideration of Verdins principles.
4.	If the sentencing discretion is reopened, weight should be given to the consequence of the restrictions imposed following the COVID-19 pandemic, and that imprisonment for the appellant has become more burdensome.
Circumstances of the offending
Indictment J13201971:  the offending on 4 September 2017
Charge 1:  theft
5	At about 2:15 pm on 4 September 2017, the appellant stole four 5-packs of Woodstock bourbon pre-mix drinks worth $20 each from a Carrum Downs drive-through bottle shop.  When the sales assistant asked if he was going to pay, the appellant said, ‘Go on call the police.  You can’t come after me.’  Afterwards the sales assistant felt shaken up and upset.
Charge 2:  aggravated burglary
6	At about 7:00 pm, in company with two co-offenders, Jake Lucas and Jazmine Young, the appellant unlawfully entered a unit in the Log Cabin Caravan Park in Langwarrin intending to assault the occupant, Peter Bell, who was known to Lucas, but not to the appellant.  At the time they entered the unit, the appellant was carrying a Taser.
Charge 3:  armed robbery
7	After entering the unit, the appellant produced the Taser, pointed it at Mr Bell’s neck and activated it.  The appellant said that he was going to use the Taser to kill Mr Bell.  He also said, ‘Where’s your money?’ and demanded that Mr Bell hand over his wallet.  The appellant said he was going to take Mr Bell’s car and cigarettes.  He also asked Mr Bell where drugs were.  He demanded that Mr Bell sign over his car to him.  He looked around the unit.  Together with his co-offenders, the appellant ultimately stole Mr Bell’s mobile phone, a pack of cigarettes, Mr Bell’s Mazda 323 Astina sedan, and the car keys and paperwork for the car.  The car was later found abandoned in a poor condition.
Charge 4:  recklessly causing injury
8	During the 25 minutes the appellant and his co-offenders were in Mr Bell’s unit, the appellant repeatedly assaulted Mr Bell, who had already been pushed onto a couch by one of the co-offenders.  The appellant punched the side of Mr Bell’s head a number of times with a closed fist.  He physically assaulted Mr Bell again later.  After asking Mr Bell, ‘Do you know who I am?’ and Mr Bell said he did not know, the appellant bit Mr Bell on his right ear, grabbed him and forced his head back against the couch.  The appellant tried to bite Mr Bell’s right cheek, but Mr Bell resisted.  One of the appellant’s co-offenders also assaulted Mr Bell, including punching him.  The assailants called Mr Bell an idiot and taunted him.  The injuries inflicted on Mr Bell included a black and bloodshot right eye;  a cut above his right eye;  bites on his nose and right ear;  and bruising to his ear.
Charge 5:  threats to kill
9	The appellant and his co-offenders repeatedly threatened to kill and harm Mr Bell.  When the appellant presented the Taser, he warned Mr Bell that he was going to give him 10,000 volts and kill him with the Taser.  He later waved the Taser in front of Mr Bell’s face and again said he would kill him.  After leaving the unit to search Mr Bell’s car, the appellant returned and he and one of his co-offenders again repeatedly threatened to kill Mr Bell, and also threatened to tie him up and Taser him and put him in the boot of his car and murder him.  There were threats of returning with a gun and shooting Mr Bell, who was very fearful and took the threats seriously.
Charge 6:  theft
10	At about 7:35 pm, after leaving the unit, with his co-offenders in Mr Bell’s stolen Mazda, the appellant stole $30 of petrol from a Skye BP service station.
Indictment J13196518:  the offending on 6 September 2017
Charge 1:  armed robbery
11	At about 11:45 am on 6 September 2017, at a milk bar in Linden Place, Doveton, the appellant asked the sales assistant for a packet of Peter Jackson cigarettes.  When she obtained a packet, the appellant produced a kitchen knife from his pocket.  He held the knife above his head in a threatening manner before moving his hand in a stabbing motion as he told the sales assistant to shut up.  The appellant jumped the counter.  The sales assistant was screaming.  She fell to the ground and put her hands up in a defensive manner.  The appellant stood over his victim as he opened the cigarette cabinet and stole six cigarette packs worth about $200.  He tried unsuccessfully to open the cash register.  When the sales assistant stood up, the appellant turned on her and raised his knife above her head, shouting at her.  He then fled.  The sales assistant was distraught afterwards.
Charge 2:  robbery
12	At about 12:55 pm, the appellant stole two one-litre bottles of Jack Daniels, worth $75, from Liquorland at Eden Rise Shopping Centre in Berwick.  As he did so, the appellant said to the sales assistant, ‘I’m just going to walk away with these two bottles.  I know that you can’t do anything about it.’  He said he had a knife in his pocket.  The appellant apologised to the sales assistant, indicating he had issues and did not care if the sales assistant called the police after he left.
Charge 3:  robbery
13	At about 7:00 pm, the appellant stole three one-litre bottles of Jack Daniels, worth $90, from Liquorland at Clyde North.  He again told the sales assistant there was nothing the sales assistant could do about the appellant taking the bottles.  He said, ‘I have a knife.  If you try and do anything I’ll fucking stab you.’  The appellant told the sales assistant that he could call police if he wanted to.
Charge 4:  robbery
14	At about 7:30 pm, the appellant stole a 24-pack of cans of Jack Daniels and cola, worth $95, from Liquorland in Cranbourne North.  As he patted his pockets, as if to indicate he had a knife, he said to the sales assistant, ‘I’m going to take this slab and if you try and stop me I’ll pull out my knife and stab you.’  When leaving, the appellant said, ‘I’m sorry mate.’
New South Wales offending and sentence
15	On Sunday 10 September 2017, the appellant was arrested in Orange, New  South Wales, in relation to unrelated offending committed that day.  The appellant was identified as potentially being the offender in at least some of his Victorian offences.  On 13 September 2017, the appellant was interviewed, during which he exercised his right to make no comment.  His DNA was later matched to a swab taken from Mr Bell’s nose after Mr Bell was assaulted. 
16	On 6 November 2017, at the New South Wales Local Court the appellant was sentenced with respect to his offending in Orange on 10 September 2017.  The offences for which he was sentenced included larceny, destruction of property, receiving stolen property, using an offensive weapon and preventing lawful detention (arising from a police pursuit), and also some minor dishonesty offences committed from 2016.  The total effective sentence imposed in New South Wales was imprisonment for two years.  A non-parole period was fixed.  On the plea there was some doubt as to the length of the non-parole period.  In any event, whatever the actual length of the non-parole period, the appellant served 15 months’ imprisonment in New South Wales.
17	On 10 December 2018, upon being paroled in New South Wales, the appellant was extradited to Victoria.
Pleas of guilty
18	On 5 March 2019, after an uncontested committal hearing with no witnesses called, the appellant pleaded guilty to the charges arising from his offending on 6 September 2017.  He pleaded not guilty to the charges arising from his offending on 4 September 2017, but ongoing discussions led to a resolution of those matters on 6 September 2019.  On 16 September 2019, the appellant was arraigned in the County Court, and pleaded guilty.
Appellant’s background
19	The appellant was born in May 1993.  He was 24 at the time of his offending, and 26 at the time of sentencing.  
20	The appellant grew up predominantly in country New South Wales and, as the judge put it, ‘had little by way of useful guidance or good role models’.  The appellant’s life as a child involved foster care, instability and homelessness.  He witnessed violence against his mother from one of her partners, and he himself was the victim of sexual abuse at the hands of a foster carer.
21	The appellant was expelled from both primary school and secondary school.  As the judge put it, however, one positive thing that could be said was that the appellant appeared to have no difficulty finding and holding down jobs — having worked in abattoirs and a recycling plant, as well as having been employed as an apprentice chef, a farmhand, a removalist and at McDonald’s. 
22	On the plea, a report from Gina Cidoni, a consultant psychologist who interviewed and assessed the appellant in January 2020, was tendered.  Ms Cidoni expressed the opinion that the appellant has a borderline intellect, with a full scale IQ of 71.  She also expressed the opinion that her assessment of the appellant supported a diagnosis of PTSD, Borderline Personality Disorder, comorbid depression and Substance Use Disorder.  Ms Cidoni said that the appellant ‘has major challenges in emotional and behavioural control’.
23	The appellant has a relatively lengthy criminal history, having served a number of prison sentences before being sentenced for his offending on 4 and 6 September 2017.  His prior offending included breaking and entering, criminal damage type offences, aggravated burglaries, dishonesty offences, many breaches of intervention or apprehended violence orders, a range of driving offences, common assault and resisting an officer in the execution of his or her duty.
Sentencing reasons
24	In summarising the appellant’s offending, the judge noted that the offending in which Mr Bell was the victim, arose out of a very minor disagreement which existed between Mr Bell and the appellant’s co-accused, Lucas.  The judge described this offending, which he said was ‘extremely nasty’, as having been made more extraordinary by the fact that the appellant had no connection at all to the very minor disagreement between Lucas and Mr Bell.  His Honour described the armed robbery of Mr Bell as ‘very nasty’, involving ‘an ongoing and sustained physical attack which included a number of totally unprovoked blows to the head’.
25	In relation to the armed robbery committed on 6 September 2017, the judge said that this was committed ‘upon the lone 54 year old female milk bar attendant [and it] was a nasty soft target armed robbery’.  The judge then described the three robberies the appellant committed at Liquorland outlets on the same day (6 September), in which the appellant engendered fear in his victims.
26	Next, the judge referred to the appellant’s offending in New South Wales and his period in custody in respect of that offending, saying that he would have regard to this period on the issue of totality.
27	The judge then referred to the various matters in mitigation, raised on the plea.  They included:
•	the appellant’s guilty plea and the early stage of that plea;
•	the presence of some remorse;
•	the appellant’s background of disadvantage;
•	the appellant’s relative youth;
•	the appellant’s personal circumstances, including a low level of functioning and some ‘past unfortunate events’ in his life over and above the disadvantaged background to which the judge had already referred;
•	the fact that the fifth principle in Verdins was engaged;
•	totality;  and
•	the appellant’s ‘past relatively good employment record’, suggesting that there were some guarded prospects of rehabilitation.
28	Next, the judge dealt with the sentence imposed on the appellant’s co-offender, Young.  The judge then noted the appellant’s counsel’s concession of the inevitability of a prison term requiring the fixing of a non-parole period.
29	After dealing with the prosecutor’s submissions on the plea, and the absence of any victim impact statements, the judge then dealt in some detail with the appellant’s background.  In the course of dealing with the appellant’s background, the judge referred to the report from Ms Cidoni saying that, because of the appellant’s post-traumatic stress disorder, he was prepared to find ‘some very modest increase in [the appellant’s] custodial burden in a Verdins fashion’ (principle 5).
30	Under separate headings, the judge then dealt with the issues of the appellant’s youth, his guilty plea, remorse and rehabilitation.  In relation to the appellant’s guilty pleas, the judge said that he was required to ‘reward [the appellant] for [his] early guilty plea’.  
31	In relation to totality, the judge said:
I turn to the issue of totality of sentence here.  You have been continuously in custody since 10 September 2017.  It is a little over 2 years and five months.  About half of that period related to the New South Wales sentence(s) imposed for the offences occurring on 10 September 2017 and earlier in 2016.  You have been in custody in this State pursuant to the matters I am dealing with for a shorter period, being 431 days from the date of your extradition on 10 December 2018.  So the strict pre-sentence detention declaration that I can make under s 18 of the Sentencing Act is 431 days.  I do have regard though to the greater period in application of the principle of totality of sentence.  The fact is though that I am dealing with some unmistakably serious offences, far more serious than those for which you received the New South Wales sentence(s).  I must consider whether the effect of the sentences that I will soon pronounce is just and appropriate and commensurate with your overall criminality.  I have engaged in a last look at the sentences imposed by this court and the total effect of them, in endeavouring to guard against the imposition of a crushing term upon you.  I will certainly strive to avoid imposing a crushing sentence but I am dealing with serious offences, many of them committed upon different victims.  It must necessarily lead to a level of cumulation and it all adds up to a sizeable prison term.  Of course I am worried about the prospect of you becoming institutionalised but I must pass appropriate sentences and allow for appropriate levels of cumulation.  I will moderate the cumulation to recognise the fact that the offences occurred in a similar time frame, indeed in a single episode in the case of Mr Bell.  However, I must give adequate weight to the individual crimes committed upon individual victims and in Mr Bell’s case, serious individual crimes committed upon him each which undoubtedly would have individually contributed to the overall impact upon him.  It is of course entirely unimportant that I have these two indictments.  I am dealing with one aggravated burglary, two armed robberies and three robberies together with the other charges I mentioned and I am dealing with multiple victims.  It is inescapable that it is going to produce a sizable term of imprisonment.
32	Under the heading ‘general remarks’, the judge said that each of the appellant’s armed robberies were ‘undoubtedly nasty’ and that they were not low level offences.  The judge referred to the aggravated burglary as being a confrontational aggravated burglary, where the appellant had entered with the intention of assaulting Mr Bell.  As the judge put it, ‘this was no minor or low level example of the crime of aggravated burglary’.
33	Finally, after dealing with parity in relation to a sentence that had already been passed on the co-offender Young, the judge turned to the purposes of sentencing.  In summary, the judge said:
•	the appellant’s prospects of rehabilitation were ‘quite guarded’;
•	denunciation was an important consideration;
•	he was required to impose a just and proportionate sentence in relation to his offending, with punishment being an important sentencing purpose;
•	specific deterrence was a highly relevant factor, given the appellant’s criminal history and the nature of his offences;
•	community protection was important and had to be given ‘real weight’;
•	general deterrence was an important purpose of sentencing in this case;  and
•	
regard had to be paid to the maximum penalties for the appellant’s offences, together with current sentencing practice.
Consideration
34	Grounds 1 and 2 are interrelated.  Under ground 1, the appellant complains that, for offending that occurred over a six day period (from 4 to 10 September 2017), in the ‘same context of homelessness, social dislocation, poor judgment and problem-solving skills, substance abuse issues, and with the appellant from a background of a significant dysfunction and disadvantage’, the sentence imposed by the judge (on top of the sentence imposed and served in New South Wales) infringed the principle of totality.  With respect to ground 2, the appellant contended that the sentence imposed by the judge was manifestly excessive, having regard to totality;  the objective seriousness of the appellant’s offending;  and the personal circumstances of the appellant as identified in the plea hearing before the judge.
35	In contending that the sentence imposed by the judge infringed totality, the appellant submitted that it was the orders for cumulation made by the judge which failed to adequately reflect the principle of totality.  Specifically, the appellant noted that 14 months was cumulated on the base sentence (charge 2 — aggravated burglary) on Indictment J13201971;  12 months was cumulated on the base sentence (charge 1 — armed robbery) on Indictment J13196518;  24 months was added as cumulation between the two indictments;  and 15 months was added in respect of the time period served in New South Wales.  It was submitted that, in total, a period of five years and five months was ‘added to the sentence of the appellant’, and that this infringed the principle of totality and rendered the total effective sentence of six years and eight months, with a non-parole period of three years and ten months, manifestly excessive.
36	These submissions must be rejected.  When considering the issue of totality, one cannot merely isolate individual orders for cumulation and consider the sum of those orders without reference to the individual sentences imposed in respect of the individual offences.  Moreover, adding together the orders for cumulation on indictment J13196518 together with the order for cumulation of the sentence imposed on that indictment on the sentence imposed on Indictment J13201971 involves an element of double counting.
37	The aggravated burglary committed by the appellant on 4 September 2017 was, as the judge described it, a particularly nasty example of that crime.  It was serious offending, deserving of a significant term of imprisonment.  The judge, however, imposed a relatively modest sentence of three years and six months for that offence.  That modest sentence can only be explained by reference to the mitigating factors relied upon by the appellant on the plea and the application by the judge of the principle of totality.  The same may be said of the ‘nasty’ armed robbery committed by the appellant two days later on 6 September 2017.
38	As the judge’s reasons for sentence show, the judge gave careful and detailed consideration to the issue of totality.  Contrary to the appellant’s counsel’s oral submissions, the judge’s references to ‘guarding against the imposition of a crushing term’ and having to pass ‘appropriate sentences and allow for appropriate levels of cumulation’ do not show that the judge failed to give full and appropriate effect to the principles of totality.
39	Moreover, the ultimate total effective sentence and non-parole period do not disclose any error in the judge’s application of the principles of totality.  To the contrary, the total effective sentence and non-parole period imposed reflect, not only the various other mitigating factors relied upon by the appellant, but also the issue of totality.  This is particularly so if one were to notionally add the 15 months the appellant served in New South Wales to the total effective sentence and the non-parole period ordered by the judge. Again, as the judge rightly observed, the offending for which the appellant fell to be sentenced was serious offending.  Protection of the community, just punishment, denunciation and deterrence (both general and specific) were important sentencing considerations — notwithstanding the mitigating factors to which the judge gave detailed consideration in his reasons for sentence.  
40	Turning to manifest excess, as has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed is wholly outside the range of sentencing options available to the sentencing judge.  That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender.  Again, as has been said many times, this is a stringent requirement, difficult to satisfy. 
41	Having regard to all of the circumstances of the appellant’s offending, and to his personal circumstances, all of which we have referred to above, we are not persuaded that any of the sentences, orders for cumulation, or the total effective sentence and non-parole period, were outside the permissible range of sentencing options available to the judge.  It follows that, like ground 1, ground 2 must be rejected.
42	Grounds 3 and 4 only have relevance if the sentencing discretion is reopened by reason of the appellant enjoying success on either ground 1 or ground 2.  As grounds 1 and 2 must be rejected, so must grounds 3 and 4.
Conclusion
43	The appeal will be dismissed.
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