Some priors are more meaningful than others

Judicial blindfold firmly in place when Vic Appeals fiddled with the sentence of expelled Hells Angel ... When is a prior conviction not a prior conviction? ... Barry Lane investigates

In Veen v R [No 2] (1987) 164 CLR 465 the High Court said that when sentencing an offender their ...

"antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

Before he was excommunicated from the Hells Angels in 2007 for conduct unbecoming a member, Terrence Raymond Tognolini, or Tog, had been a long-time enforcer for the bikie gang, who had rained terror on his competitors and hapless members of the public who happened to be in the wrong place at the wrong time.

Tog's undoing was that he broke the gang's first commandment: thou shall not sexually interfere with children.

When it became known around his clubhouse that Tog has breached that law his membership of the gang was summarily terminated with menaces.

Without notice, Tog was stripped of his club colours, beaten and had his club tatts obliterated.

Andrew Rule mapped out some of Tog's recent history in The Age while some of his more distant past was noticed by John Silvester.

From then on, he was on his own.

For some time prior to that both Tog and the gang had been the subject of various intensive investigations by police, but nothing really came of them. 

Numerous people had been threatened, put upon for money, assaulted and had their property torched.

When investigators and prosecutors tallied up what they'd been able to piece together from Tog's exploits between 1996 and 2006, his criminal conduct was divided into two tranches: personal business and gang related business.

In relation to the former, Tog was found guilty by a County Court jury in November 2008 of one count of indecent assault and one count of attempting to pervert the course of justice.

Tog: Court of Appeal ignored about 30 prior convictionsHe pleaded guilty to 18 counts of supplying a drug of dependence to a child. In March 2009 he was sentenced to eight-and-a-half with six-and-a-half years' imprisonment.

He appealed conviction and sentence.

In October 2009 another County Court jury found Tog guilty on 14 counts including nine of blackmail, three of arson, one of threatening to damage property and one of indecent assault.

In relation to those offences he was sentenced in January 2010 to 12 years imprisonment with a minimum of eight, but with allowances for concurrency his previous term was increased by 18 months.

The Court of Appeal takes up the narrative (Tognolini v The Queen [2011] VSCA 113) when it heard Tog's appeal on January 28.

Judgment was delivered on April 20:

"The applicant was aged 41 when the offences were alleged to have occurred. The applicant lived in a house equipped with high security measures, including external roller shutters on the windows, a closed TV system and surveillance cameras. The house was frequented by young girls, mainly in their mid-teens, who were supplied with drugs by the applicant. The drugs were cannabis, ecstasy and amphetamine. The girls would stay awake for days under the influence of drugs and then sleep.

Early in 2006, the applicant was introduced to JS by the teenage daughter of his partner. Later that year, JS began spending time at the applicant's house and she brought her friends to it. In this fashion, the applicant met KB, another young girl.

KB was aged 14 years when she met the applicant. She was troubled and vulnerable, as were the other girls. KB had been left without accommodation or support in Melbourne when her mother returned to country Victoria, where the family lived. A stranger found KB crying in a park and gave her a lift to meet JS, whom she knew from her home town.

The applicant and KB met on 31 October 2006 and that night they commenced a sexual relationship, which lasted for some four to six weeks. KB described it as 'like being married'. The applicant and KB shared a bed and went out to dinner together. KB accompanied the applicant to a family wedding. KB said she had been a heavy user of cannabis, and the applicant introduced her to amphetamine and methylamphetamine."

In relation to Tog's priors and mitigating factors, the Court of Appeal said:

"The applicant had 23 prior convictions from 10 court appearances, including offences of dishonesty, drug offences and armed robbery. The applicant used cannabis from the age of 16 years and has used amphetamine. A report by a psychiatrist was tendered in the course of the plea. The psychiatrist was of the opinion that the applicant suffered from recurrent depression, which was moderate in severity. The psychiatrist said:

'Although he has exhibited gross errors of judgement in his dealings with teenage girls, and demonstrates a poor understanding of the appropriate boundary of the behaviour with young girls, this does not appear to be premised upon deviant sexual arousal which is necessary for a diagnosis of paedophilia.'

The applicant could rely on several mitigating factors. He pleaded guilty to the counts of supplying drugs of dependence to children. Since his arrest in 2007 the applicant had been held in a management unit and was likely to remain there. The conditions in a management unit are onerous. The applicant had been locked down for between 22 and 23 hours a day and had limited opportunity to associate with other prisoners or to exercise. Finally, there was a measure of untoward delay in trying the charges against the applicant."

It may be that when Tog was sentenced on March 5, 2009 in relation to the sex offences he had 23 priors from 10 court appearances, but by the time the Court of Appeal resentenced him on April 20, 2011 another 30 odd convictions had been added to the list most of which related to misconduct engaged in prior to the commission of the sex offences in 2006.

For the Court of Appeal to apparently ignored those convictions seems to fly in the face of s.6 of the Sentencing Act 1991, authority and common sense. 

Bearing in mind that Tog only got an extra 18 months' porridge after he was sentenced for the gang related offences in 2010 and the Court of Appeal thought that HH Judge Sexton in the County Court imposed a "stern" penalty on him for attempting to pervert the course of justice, which led them to slice two years off the top and bottom (reduced to six-and-a-half years imprisonment with four-and-a-half years), you'd be forgiven for thinking that Tog got off rather lightly. After all, he started a decade of offending aged 31 with 23 priors from 10 court appearances and then committed another 30 odd serious offences.