Victorian Court of Appeal outlines how participating in the Koori Court process is relevant to sentencing

Honeysett v The Queen [2018] VSCA 214

Summary

The Victorian Court of Appeal dismissed an appeal against sentence of 5 years imprisonment with a non-parole period of 3 years for armed robbery. This case provides useful guidance on the weight to be afforded to an Aboriginal offender's participation in the Koori Court process.

Facts

On 24 February 2017, Mr Honeysett entered a Dan Murphy's liquor store in Glen Waverly, Victoria, armed with a knife. While his two co-offenders kept guard, Mr Honeysett threatened an employee with the knife, demanding money from the till. Mr Honeysett and his co-offenders left with the cash drawer containing $1052.35. He was arrested the next day.

The appellant plead guilty to armed robbery and theft, and participated in the Koori Court Division of the Victorian County Court.

This was Mr Honeysett's third conviction for armed robbery. He has a history of stealing offences since he was 16. Mr Honeysett was raised initially by his mother and father who were both drug addicted, and later by his grandmother. He attended school to year 8, however was unable to read or write. Mr Honeysett suffered from substance abuse since early adolescence and began using amphetamines at the age of 15. The Dan Murphy robbery was in the context of heavy daily methamphetamine and GHB use.

Mr Honeysett previously participated in the Koori Court process for a similar charge in 2013. In sentencing for the 2013 offence the sentencing judge referred to the sentencing conversation and remarked: "I am convinced that you have got [that this offending must stop] in your mind and you know that it has to stop. Whether you can do it or not, history will show"—DPP v Honeysett (Unreported, County Court of Victoria, Judge Montgomery, 26 March 2013) at [15].

Sentence

The sentencing judge was guarded about Mr Honeysett's prospects of rehabilitation, though she did not believe him to be beyond rehabilitation. The sentencing judge gave particular weight to Mr Honeysett's engagement with the sentencing conversation in the Koori Court Division, concluding that he was genuinely remorseful and that he had an evolving sense of motivation. The judge also gave consideration to Mr Honeysett's profound childhood deprivation.

These factors were balanced against the need to provide just punishment and to ensure protection of the community—noting the ongoing anxiety and stress still suffered by the Dan Murphy store manager.

Appeal

Mr Honeysett appealed this decision on the basis that it was manifestly excessive. He submitted that insufficient weight was given to his deprived childhood and participation in the Koori Court sentencing conversation.

In R v Morgan (2010) 24 VR 230, the Court accepted that active participation in the Koori Court process was a factor that mitigated punishment in that case, as a consequence of the 'shaming' which occurs during the hearing and the inability of the offender to 'hide behind counsel'. While Morgan and other relevant case law provided useful guidance, the Court recognised that 'it would be useful to have this Court provide guidance as to how, precisely, the procedures adopted in the Koori Court should impact [sentencing]'[1].

The Human Rights Law Centre and the Victorian Aboriginal Legal Services were granted leave to appear as amicus in the proceedings. Together they submitted that positive engagement and participation in the Koori Court process should be a discreet mitigating factor considered in sentencing which demonstrates increased prospects for rehabilitation and ought to reduce the weight to be accorded to specific deterrence and community protection.

Mr Honeysett also contended that the Koori Court should endorse a practice of requesting reports on an offender’s deprived background and rehabilitation recommendations in every case.

Decision

The Court dismissed the appeal against the 5 year sentence imposed on the basis it was not manifestly excessive. The total sentence was said to in fact be somewhat lenient.

The Court identified at [54] a non-exhaustive list of factors which a sentencing court should consider when determining the weight to be attached to an offender’s participation in the Koori Court sentencing process including:

(1) The fact that participation in the process is a voluntary one, may be confronting to the offender, and will likely involve him or her being ‘shamed’.  As noted in Morgan, participation in the process may of itself be rehabilitative.

(2) The fact that the offender is, rather than ‘hiding behind counsel’, taking the opportunity to personally:

(a)       demonstrate his or her remorse for the offending;

(b)      demonstrate insight into the reasons for, and the seriousness and effect of, the offending; and

(c)       express any intention to reform and how that will be done, including by participating in available rehabilitation programs.

(3)        The Court’s assessment of the genuineness of the offender’s statements during the sentencing conversation.  That assessment should take account of all the information before the Court.

(emphasis added)

The Court paid particular attention to Mr Honeysett's significant criminal history and failure to engage in efforts to effect his rehabilitation, particularly to address his drug-taking and offending after release from prison following his 2013 sentencing conversation. This raised doubts about the genuineness of the Mr Honeysett's participation in his most recent sentencing conversation, going to factor 3.

Mr Honeysett’s failure to avail himself of the advice of Elders in the earlier sentencing conversation and make genuine attempts to effect his rehabilitation were relevant to factor 2(c) and further supported the conclusion that the sentence was not excessive.

While the Koori Court has the power to request reports regarding an offender, the Court of Appeal rejected submissions that the Koori Court should endorse a practice of doing so in every case. Such reports could be put forward by an offender for consideration during the sentencing conversation. Absent a legislative requirement to do so and a specific organisation who could be responsible for such reports, these submissions were said to “bear the hallmark of a plea for law reform”—at [66].

Commentary

While participation in a Koori Court sentencing conversation may amount to a distinct mitigating factor in sentencing, this case suggests that the weight to be accorded will be balanced in accordance with a range of factors closely linked to overarching sentencing considerations. It is a matter for the individual judge to assess the weight in each case, having regard to the three factors identified above.

Importantly the information or ‘feedback’ from an Aboriginal elder or respected person following a sentencing conversation may assist the sentencing process, however the weight afforded to participation is ultimately for the sentencing judge.

In the absence of legislative reform, offenders participating in the Koori Court process should be encouraged to put 'Gladue' style reports before the Court during sentencing conversations. 'Gladue' reports have a legislative base and are routinely sought in the Canadian system when sentencing Aboriginal offenders to provide information on the offender's background and recommend sentencing procedures which may promote a restorative approach. In Australia, an offender offering up such reports would demonstrate an intention to reform through the restorative approach suggested by the reports (going to factor 2(c)) and further evidence the genuineness of the offender's participation in the Koori Court process (going to factor 3).

The full decision can be found here.

Reuben Heim is a Graduate Lawyer at Ashurst