Court of Appeal (Vic)|2011-03-30|Before: Mr P, Nettle JA, Redlich JA

Adams v The Queen; DPP v Paranihi; DPP v Soltan [2011] VSCA 77 (30 March 2011)

R v Adams (Unreported, County Court of Victoria, Judge Jenkins, 23 April 2009); DPP (Vic) v Paranihi & Soltan (Unreported, County Court of Victoria, Judge Smallwood, 10 March 2010)

CRIMINAL LAW - Sentence - Manifest inadequacy - Whether the sentences imposed on S and P were manifestly inadequate - Totality - Whether the total effective sentences imposed on S and P properly reflected the totality of their offending conduct - The sentences on the individual counts, the total effective sentences and the non-parole periods were manifestly inadequate - Judge erred in the cumulation of the sentences imposed on the individual counts - Judge erred in failing to give weight to the sentencing of A as a comparable case informing the appropriate ranges for the sentencing of S and P - Appeals allowed - S re-sentenced to a total effective sentence of seven years' imprisonment with a non-parole period of five years - P re-sentenced to a total effective sentence of six years and three months' imprisonment with a non-parole period of four years and three months.

CRIMINAL LAW - Sentencing - Observations about the role of mercy - While considerations of mercy may inform the appropriate sentencing range, they cannot justify a manifestly inadequate sentence - DPP (Vic) v Cook [2004] VSCA 11; (2004) 141 A Crim R 579 applied.

CRIMINAL LAW - Sentence - Manifest excess - Whether the sentences imposed on A were manifestly excessive - While the individual sentences were not outside the appropriate ranges, the total effective sentence was manifestly excessive - Parity - Whether A's sentences infringed the principle of parity, given the re-sentencing of S and P, and the sentencing of another co-offender - Crown concession that A should be re-sentenced more leniently than S and P properly made - Appeal allowed - A re-sentenced to a total effective sentence of five years' imprisonment with a non-parole period of three years.

1 These reasons for judgment deal with the Director's appeals against the sentences imposed on Daniel Wayne Soltan and Hoani Paranihi by Judge Smallwood on 10 March 2010[1] and with an appeal brought by Anthony Raymond Adams against the sentences imposed on him by Judge Jenkins on 23 April 2009.[2] Soltan and Paranihi were presented jointly.

2 Soltan, Paranihi and Adams pleaded guilty to multiple counts of burglary, theft and damage to property arising out of a series of after-hours burglaries that they committed in concert on various business premises between December 2006 and August 2007. They and other members of their gang broke into the premises of businesses that kept large amounts of cash overnight and that had unsophisticated electronic security systems.

3 Soltan, Paranihi and Adams were co-offenders in relation to many, but not all, of the offences with which they were individually charged. The counts upon which each of them was convicted are summarised in appendix 1 to these reasons.

4 As set out in appendix 1, Soltan was convicted of 50 counts of burglary, 45 counts of theft, one count of attempted burglary and six counts of criminal damage; Paranihi was convicted of 42 counts of burglary, 34 counts of theft, one count of attempted burglary and 10 counts of criminal damage; and Adams was convicted of 19 counts of burglary, 16 counts of theft, 10 counts of destroying property, one count of handling stolen goods and one count of obtaining property by deception.

5 Another co-offender, Jim Mantzalas, who is not a party to an appeal to this Court, was convicted of 27 counts of burglary, one count of attempted burglary, 22 counts of theft, five counts of criminal damage and one count of trafficking in a drug of dependence.

6 The maximum penalty for burglary, theft, criminal damage, destroying property and obtaining property by deception is 10 years' imprisonment; the maximum penalty for attempted burglary is five years' imprisonment; and the maximum penalty for handling stolen goods is 15 years' imprisonment.

7 The sentences imposed on Soltan and Paranihi by Judge Smallwood and on Adams by Judge Jenkins, following pleas in mitigation of penalty, are summarised in appendix 1. As set out in appendix 1:

(a) Soltan was sentenced to a total effective sentence of five years' imprisonment with a non-parole period of two years and one month;[3]

(b) Paranihi was sentenced to a total effective sentence of four years and five months' imprisonment with a non-parole period of one year and nine months;[4] and

(c) Adams was sentenced to a total effective sentence of seven years and six months' imprisonment with a non-parole period of five years.[5]

8 Mantzalas was sentenced separately by Judge Smallwood on 9 February 2010 to a total effective sentence of three years and six months' imprisonment with a non-parole period of 18 months. He was given a significant discount because he gave an undertaking to assist the Crown.

9 By consent, ancillary orders were made in respect of each co-offender, including a forfeiture order in respect of Soltan's Jeep Cherokee vehicle, which was used in some of the burglaries.

10 The Director has appealed against the sentences imposed on Soltan and Paranihi on the grounds that the sentences are manifestly inadequate and that the cumulation of the sentences does not properly reflect the totality principle. In support of these grounds, the Crown submitted that Judge Smallwood failed to have appropriate regard to the sentences imposed on the co-offenders, Adams and Mantzalas.

11 On 25 June 2010, Adams was granted leave to appeal against his sentences on the grounds that they infringe the parity principle and are manifestly excessive. In its written submissions, the Crown conceded, quite properly, that if the sentences imposed on Soltan and Paranihi were not altered, the sentences imposed on Adams would infringe the parity principle. During argument on the appeal, the Crown made a further concession, namely, that if Soltan and Paranihi were re-sentenced, having regard to the parity principle in the context of the sentences imposed on Mantzalas, Adams should be re-sentenced more leniently than Soltan and Paranihi. The Crown suggested that it would be appropriate to impose on Adams a total effective sentence of five years' imprisonment with a non-parole period of three years.

12 As we have concluded that each of the appeals should be allowed and that, in respect of each offender, the sentencing discretion should be reopened, it is convenient to consider each of the appeals separately after setting out the circumstances of the offending and the personal circumstances of each of the offenders.

Overview of the circumstances of the offending

13 For the purposes of these reasons, it is not necessary to set out the circumstances of each count. It suffices for us to provide an overview of the offending, based on the Crown's opening and their Honours' reasons for sentence.

14 An organised crew led by Soltan was involved in burglaries carried out on commercial premises, outside of business hours, from December 2006 until August 2007. The crew generally targeted medical centres, medical specialists, confectionary factories and other small businesses. The burglaries were committed principally in the south-eastern suburbs of Melbourne and in Werribee.

15 Soltan would often pick the target, conduct surveillance and distribute any money or other items that were stolen during the burglary.

16 Soltan began socialising with Adams in mid 2006. He told Adams that he was committing burglaries with an associate and explained the method that they were using. Adams joined the crew in January 2007.

17 Paranihi is Adams' first cousin. Adams introduced Paranihi to Soltan, and Paranihi became involved in the burglaries in March 2007.

18 In carrying out the burglaries, Soltan, Paranihi and Adams would occasionally be joined by two other persons, Mantzalas and Dominic Caporale.

19 Typically, Soltan would contact his co-offenders by telephone to ascertain whether they were available to commit a burglary. If Paranihi and Adams were available, Soltan would usually pick them up in his Jeep Cherokee and they would travel together to the target premises, parking nearby.

20 Prior to committing the burglaries, one of the offenders - usually Paranihi - would go to a Telstra pit at the front of the premises, remove the concrete lid and cut cables inside the pit with garden pruners or a similar implement. He did so in order to ensure that the alarm could not be detected at a remote monitoring facility. The cables in the Telstra pit were cut indiscriminately and in a manner that sometimes affected neighbouring houses and businesses. The crew would wait for up to an hour to see if the police or security services attended the premises. Sometimes, they would use mobile phones to contact the target business to determine if the telephone lines had been cut successfully.

21 Once the offenders had satisfied themselves that neither the police nor security services would attend the premises, one of them would keep a look out, while the others used sledge hammers or jemmy bars to gain forced entry to the premises through a window or a door. They wore cotton gloves and covered their faces with hooded tops.

22 Once inside the premises, one of the offenders would look for an alarm and, upon finding it, would rip the alarm equipment from the wall. The others would search for cash. They specifically searched for a safe. If they found a safe, it would usually be removed from the premises and taken to a secure location, such as Mantzalas' factory or a park. At the secure location, they would break open the safe and remove its contents. At some of the premises, Soltan used a forklift to remove a safe from its existing location and to place it in a van.

23 The offenders would search for cash inside drawers, cabinets and other office furniture. Prescription drugs were frequently removed. Other items of value, such as laptops and golf clubs, were also removed.

24 In the course of each burglary, the premises would be left ransacked. Damage to the premises was often extensive and the repair costs sometimes totalled several thousand dollars.

25 Some premises were burgled on more than one occasion.

26 The target businesses suffered trading losses as a result of the temporary unavailability of telecommunications services and the temporary closure of the premises while the police conducted investigations. Some businesses struggled to recover from the burglaries. Telstra also incurred losses as a result of its cables being cut.

27 In respect of the burglaries involving Adams, the total value of the property stolen was $42,645 and the total damage that was specifically identified by the victims, including Telstra, was $33,144.

28 The presentment relating to Adams included one count of handling stolen goods (count 46) and one count of obtaining property by deception (count 47). These counts related to the sale of 'walkie talkies' that Adams stole from one of the burgled properties.

29 After the burglary on 3 May 2007, which is the subject of count 45 in Adams' presentment, Adams withdrew from the criminal enterprise and did not participate in any further burglaries. He was arrested on 28 August 2007 and was released on bail after being interviewed. During the record of interview, he made full and frank admissions, and provided information to the police about the involvement of his co-offenders. Following the interview, he signed a statement implicating his co-offenders. He entered his plea of guilty at the committal mention on 4 September 2008.

30 Soltan and Paranihi were arrested in May 2007, were charged with some of the burglaries upon which they were ultimately convicted, and were released on bail. From their release on bail until they were re-arrested on 6 August 2007 and remanded in custody, Soltan and Paranihi committed further burglaries. The offences in counts 59, 70 to 82, 85, 96, 99 to 138, and 141 to 142 in the joint presentment were committed by Soltan while he was on bail and the offences in counts 50, 53 to 69, 74, 75, 78, 79, 83 to 86, 93 to 98, and 120 to 142 were committed by Paranihi while he was on bail.

31 Soltan and Paranihi made admissions during their records of interview and indicated at the committal stage their intention to plead guilty.

32 The Crown has conceded that the offenders' guilty pleas saved the community a considerable cost in what would have been protracted litigation involving the calling of over 165 Crown witnesses.

33 Soltan was born on 11 February 1979. He was 28 years of age at the time of the offending and 31 years of age when he was sentenced.

34 Soltan's father died when he was about three years old and he was placed in foster care until he was five years old. He was sexually abused by an older boy while he was in foster care and by a family acquaintance between the ages of nine and 12 years. At the age of 12 years, he was sexually abused by a priest in the context of his attendance at Sunday school classes. As a child, he was also physically abused by a man who had a relationship with his mother. He was placed in a primary school catering for children with emotional and behavioural difficulties that was attached to a psychiatric hospital. At the age of 13 years, he was placed in a boys' home. His literacy and numeracy skills are very limited.

35 Soltan has a long history of depression and anxiety, which has included experiencing panic attacks, and he has been prescribed medication for these illnesses. He began binge drinking and using illicit drugs at the age of 13 years and commenced gambling at the age of 15 years.

36 In May 1992, Soltan was convicted of three counts of sacrilege and three counts of breaking and entering with intent after he broke into the premises of the priest who had sexually abused him. The charges were dismissed with a caution. In September 1997, Soltan was convicted of two counts of breaking and entering and one count of receiving stolen goods. He was placed on a good behaviour bond.

37 Soltan experienced drug-induced psychoses and spent some time in psychiatric hospitals, where he was treated with anti-psychotic drugs. He has engaged in self harm.

38 Between 1997 and 2006, Soltan had regular employment and did not offend. In 2006, he was out of work and his drug use and gambling escalated. He began offending in order to support his gambling addiction.

39 As a result of his psychological problems, Soltan's experience while he was on remand for six months was 'extremely frightening'.[6] While he was on bail prior to sentencing, he was successfully treated for his drug and gambling addictions, and he obtained some casual employment. He has expressed remorse.

40 Soltan has been married since 2004 and has two young children. At the time that he was sentenced, his wife was expecting their third child.

41 Paranihi was born in New Zealand on 4 July 1987. He was 19 years of age at the time of the offending and 22 years of age when he was sentenced.

42 By the age of 16 years, Paranihi was abusing alcohol and drugs, and he was a regular gambler.

43 In May 2005, he was found guilty of armed robbery and was placed on probation for 12 months. The offence was committed when he followed a man out of a TAB outlet, struck him with a brick and took his wallet.

44 Paranihi committed the 2007 burglaries while he was unemployed in order to support his drug and gambling addictions.

45 While Paranihi was on bail pending sentencing, he was successfully treated for his drug and gambling addictions. He obtained full-time employment, was in a stable relationship and had a newborn child. He has expressed remorse.

46 Adams was born in New Zealand on 16 June 1969. He was 37 years of age at the time of the offending and 39 years of age when he was sentenced.

47 Adams was expelled from school at the age of 14 years. At the age of 15 years, he developed a habit of drinking alcohol and smoking cannabis. He lived an unstructured life until the age of 19, when he was imprisoned for three months for drink-driving offences. Upon his release from prison, he moved to Sydney.

48 In 1992, Adams completed the New South Wales equivalent of the Victorian Certificate of Education.

49 In March 1998, Adams was found guilty of causing wilful damage and providing a false name and address to police. He was placed on a good behaviour bond for 12 months. In August 1998, he was convicted of road safety offences, breaching an intervention order and resisting police. He was fined an aggregate amount of $600, his driver's licence was cancelled and he was disqualified from obtaining a driver's licence for 12 months.

50 Adams held regular employment until a landscaping business in which he was involved was disbanded. He then reverted to drug use. His drug use escalated after he began socialising with Soltan in 2006.

51 Adams committed the 2007 burglaries in order to support his drug addiction. As stated at [29] above, he withdrew from the criminal enterprise in May 2007. He then sought medical assistance for his drug addiction.

52 While Adams was on bail pending sentencing, he overcame his drug addiction. He obtained full-time employment and has expressed remorse.

53 Adams has been with his current partner for over 19 years and they have three children.

Analysis of the Director's grounds of appeal relating to Soltan

54 The Director's grounds of appeal relating to Soltan are set out at [10] above.

55 The first ground of appeal was that the sentences imposed on Soltan are manifestly inadequate. The Crown contended that the sentences on each count and the total effective sentence are manifestly inadequate because they do not reflect the seriousness of Soltan's offending and gave too much weight to mitigating factors.

56 In his reasons for sentencing, Judge Smallwood described the offenders as a 'relatively well-organised' and 'professional' gang that engaged in 'prolonged offending' that 'can only be regarded as serious'.[7] His Honour noted that the offences were motivated by substance abuse and gambling, that some of the offences were committed after Soltan and Paranihi were released on bail and that the offences caused 'financial and other stresses' on the victims.[8] His Honour concluded his sentencing reasons with the following observation, which was addressed to both Soltan and Paranihi:

what has to be borne in mind is that each of you consciously and deliberately set out on a course of criminal conduct of quite large proportions. Each of you was arrested in the midst of that and each of you, upon release, determined to pursue that conduct again. Accordingly, ... an active custodial sentence is inevitable and that custodial sentence must be significant. ... I have given each of you a far-earlier opportunity for parole than might otherwise have been the case.[9]

57 Judge Smallwood stated that Soltan and Paranihi had presented 'powerful plea material', which warranted his Honour acting 'mercifully'.[10] His Honour took into account their pleas of guilt; their remorse; their 'reasonably good' prospects of rehabilitation;[11] the delay of two and a half years between their arrest and their sentencing; Paranihi's youth; and Soltan's psychological condition. His Honour held that Soltan's psychological condition was a relevant consideration, even though it did not engage any of the principles set out in R v Verdins.[12] He held that the offending called for general deterrence and, to a more limited degree, specific deterrence for both Soltan and Paranihi.

58 Judge Smallwood accepted that Soltan's gambling addiction was one of the reasons for his offending.

59 During the plea, his Honour said that the process of cumulation for the various counts of burglary was 'almost an artificial process'; that he was conscious of the fact that Soltan '[is] to be sentenced for a course of conduct'; and that 'totality will, to a large extent, dictate what degree of accumulation there is'.

60 In his reasons for sentence, Judge Smallwood referred to the parity principle and, in that context, discussed the sentences that he had imposed on Mantzalas. However, his Honour did not refer to the sentences imposed on Adams by Judge Jenkins or to her Honour's reasons for sentence. During the plea for Paranihi, his Honour said, 'I'm not taking Adams into account at all', without any elaboration.

61 The Crown relied on the decisions in Minotto v The Queen,[13] R v Solomon,[14] Ciantar v The Queen,[15] R v Tinti[16] and R v Berry[17] in support of the following two propositions: first, where an offender has pleaded guilty to committing burglaries on commercial premises as a member of an organised gang and his or her offending was motivated by drug or gambling problems, sentences in the range of two to four years' imprisonment have been imposed in respect of individual counts of burglary; second, in such cases, substantial total effective sentences have been imposed in respect of offending involving far fewer counts than were involved in this case.

62 Counsel for Soltan submitted that Judge Smallwood did not make any error of principle - including in relation to the parity principle - and that the circumstances of the offending and the mitigatory factors justified his Honour's adoption of a lenient and merciful approach to sentencing. Counsel contended that the cases upon which the Crown relied involved offences with striking aggravating features and did not establish an applicable sentencing range.

63 We accept the Crown's submission that, given the nature and gravity of Soltan's offences, the sentences imposed on the individual counts, the total effective sentence and the non-parole period are manifestly inadequate. Our reasons are set out below.

64 Soltan was the leader of a gang of thieves who showed a callous disregard for the property of vulnerable small businesses. He and his co-offenders engaged in an organised and prolonged criminal enterprise, which was motivated by financial gain. Not only did they steal cash and other valuable items, but they also ransacked the victims' premises and caused significant damage and disruption to the operations of their businesses.

65 It is true that the premises targeted were not private residences and so the aggravating factors that are often associated with the burglaries of such premises - for example, the theft of irreplaceable personal items, the invasion of personal privacy and the traumatisation of the residents - were absent in this case. However, the physical state in which each of the premises was left and the impossibility of each targeted business resuming its normal operations for some time after the burglary constituted aggravating circumstances. According to the victim impact statements, the cutting of the cables in the Telstra pit and the violent manner in which entry was gained to the small business premises had a serious impact on the owners of those businesses and caused financial and other stresses.

66 The fact that Soltan continued to offend following his arrest and release on bail significantly added to his culpability. Specific, as well as general, deterrence were important sentencing considerations.

67 While the mitigating factors that were relied upon by Soltan warranted appropriate discounts to the individual sentences, the total effective sentence and the non-parole period had to be assessed within the context of the sheer magnitude of the offending and the harm that was caused to a large number of victims. In our opinion, his Honour gave too much weight to the mitigating factors and insufficient weight to the aggravating features of the offending. As a result, the sentences imposed on Soltan failed to reflect the gravity of the offending.

68 According to the Sentencing Advisory Council's 'Sentencing Snapshot' for the offence of burglary, between 2004-05 and 2008-09, the median length of imprisonment in respect of that offence was one year and three months. The average length of imprisonment ranged from one year and two months in 2004-05 to one year and ten months in 2007-08 and 2008-09.[18] The base sentence of 12 months imposed on Soltan for count 1 was below the median and well below the average length of imprisonment in 2007-08 and 2008-09. It is also one-tenth of the maximum penalty of 10 years' imprisonment.

69 The Sentencing Advisory Council's 'Sentencing Snapshot' for the offence of theft discloses that, between 2003-04 and 2007-08, the median length of imprisonment in respect of that offence was one year and six months. The average length of imprisonment ranged from one year and 11 months in 2004-05 to one year and five months in 2006-07.[19] The individual sentences that Judge Smallwood imposed for theft ranged from one month to nine months and were well below the above-mentioned median and average lengths of imprisonment.

70 The facts of a particular case may justify the sentencing judge adopting a merciful approach to the exercise of his or her sentencing discretion.[20] However, while considerations of mercy may inform the appropriate range, they cannot justify a manifestly inadequate sentence.[21] The sentences imposed on Soltan were well below the range that was appropriate for his offending.

71 Judge Smallwood made an uncontested finding of fact that one of the reasons for Soltan's offending was his gambling addiction. Addiction to alcohol, drugs or gambling is all too often a contributing factor to the commission of offences such as burglary and theft. While such addiction may explain the offending in a particular case, this Court has emphasised, on numerous occasions, that ordinarily it is not, in itself, a mitigating factor in the sentencing process.[22]

72 The Director's second ground of appeal was that the cumulation ordered by Judge Smallwood did not properly reflect the totality of the offending conduct. As we have already concluded that the total effective sentence was manifestly inadequate, it follows that his Honour erred in the cumulation that he ordered in arriving at that sentence.

73 The small periods of cumulation which his Honour ordered in respect of some of the counts of burglary may have been informed by his Honour's observations during the plea that the process of cumulation was 'almost an artificial process' and that Soltan '[is] to be sentenced for a course of conduct'.[23]

74 His Honour correctly recognised that there was some overlap between the conduct constituting the offences of burglary and the conduct constituting the offences of theft and that cumulation was not required in relation to the counts of theft. That overlap also warranted individual sentences for each count of theft that were lower than the sentences that would have been appropriate for thefts that were independent of a burglary. Nonetheless, the individual sentences imposed for each count of theft were manifestly inadequate and may well have contributed to the selection of a manifestly inadequate total effective sentence.

75 The Crown did not pursue its third ground of appeal in the manner in which that ground was initially formulated, namely, that, in sentencing Soltan, Judge Smallwood failed to apply the parity principle in respect of the co-offenders Adams and Mantzalas. During argument on the appeal, the Crown submitted that, in determining the appropriate sentencing range for Soltan's offending, Judge Smallwood erred in failing to take into account the sentences that had been imposed on Adams and Mantzalas.

76 At this juncture, it is convenient to refer to a submission that was made by counsel for Paranihi. Counsel submitted that it was not open to the Crown to rely upon the disparity between the sentences imposed on Adams and the sentences imposed on Soltan and Paranihi. Assuming, without deciding, that the principle of parity cannot be invoked by the Crown as a basis for increasing a sentence to bring it into conformity with a co-offender's sentence,[24] and assuming also that there was no error in the co-offender's sentence, notions of equal justice and consistency required that it be given weight as a comparable case in informing the range of sentences that are applicable.[25] The fundamental principle of equal justice that inheres in the exercise of judicial power requires some relativity between the sentences imposed upon co-offenders.

77 In sentencing Soltan and Paranihi, the principles of equal justice and consistency of sentences were relevant. Yet Judge Smallwood provided no explanation as to why he imposed sentences that were so much more lenient than the sentences imposed on Adams. It could not be explained by any of the mitigating factors to which his Honour referred. The inconsistency was the more marked because, as the Crown has conceded, Adams' offending was significantly less culpable than that of Soltan and Paranihi. If the sentences imposed upon Adams were within the correct range, then plainly the sentences imposed on Soltan and Paranihi were not.

78 The Crown submitted that there was no discernible rational explanation for what otherwise appears to be an inconsistent sentence which was not within the range that was reasonably open to his Honour. In our opinion, the Crown's submission is correct.

Analysis of the Director's grounds of appeal relating to Paranihi

79 The Crown's grounds of appeal and submissions in relation to Paranihi were essentially the same as the Crown's grounds of appeal and submissions in relation to Soltan.

80 The submissions of counsel for Paranihi were along the same lines as the submissions that were made by counsel for Soltan. Counsel emphasised the fact that Paranihi was much younger than his co-offenders.

81 The main differences between Soltan's offending and Paranihi's offending were that:

(b) Soltan was eight years older than Paranihi; and

(c) unlike Soltan, Paranihi was not sexually or physically abused as a child and did not suffer from a psychological condition.

82 In our opinion, the reasons given at [64] to [78] above as to why the sentences imposed on Soltan were manifestly inadequate, modified appropriately to account for the differences between the circumstances of Soltan and Paranihi, apply equally to the sentences imposed on Paranihi. Those differences justify the imposition of more lenient sentences on Paranihi compared to the sentences imposed on Soltan, but they do not materially affect the analysis regarding the adequacy of Paranihi's sentences.

83 It follows that, for the reasons set out above in relation to Soltan, the sentences imposed on Paranihi were manifestly inadequate.

Disposition of the Director's appeals in relation to Soltan and Paranihi

84 Having found that the sentences imposed on Soltan and Paranihi were manifestly inadequate, the question that now arises is whether this Court should intervene.

85 Counsel for Paranihi submitted that, in determining whether there was sentencing error, as required by s 289(1)(a) of the Criminal Procedure Act 2009, this Court's decision in Director of Public Prosecutions (Vic) v Karazisis[26] did not remove the obligation of the Crown to show that something more than manifest inadequacy was present on a Crown appeal.

86 Counsel for Soltan and Paranihi each submitted that, even if sentencing error were established, the Director's appeals should be dismissed in the exercise of the Court's discretion[27] on the basis of the mitigatory factors to which we have already referred.

87 Finally, both counsel submitted that, if this Court were persuaded to reopen the sentencing discretion, we should give significant weight to Judge Smallwood's finding that merciful sentences were warranted.

88 Even if the burden upon the Crown continues to be as it was stated in Director of Public Prosecutions (Vic) v Higgs[28] that, '[a]ssuming there to be no other basis upon which error of principle can be demonstrated, the Court must be persuaded that the inadequacy is so egregiously disproportionate to the seriousness of the crime as to betoken such error',[29] we are of the view that the sentences imposed on Soltan and Paranihi meet that description and are such as to shock the public conscience.[30] Appellate intervention is warranted and Soltan and Paranihi must be re-sentenced.

89 In re-sentencing Soltan and Paranihi, it is appropriate for this Court to take into account Judge Smallwood's finding that merciful sentences were warranted. As we have said at [70] above, however, while considerations of mercy may inform the appropriate sentencing range, they cannot justify a sentence that is manifestly inadequate. In all the circumstances, considerations of mercy did not warrant the weight that his Honour accorded to them in sentencing Soltan and Paranihi.

90 In re-sentencing Soltan, we have taken into account a letter dated 25 February 2011 from the chaplain at Loddon Prison, Castlemaine, to the Court. The letter describes Soltan's progress towards rehabilitation and was tendered without objection from the Crown.

91 We would set aside the sentences imposed below and, in lieu of those sentences, re-sentence Soltan on each of the counts as set out in appendix 2. We would order cumulation of the sentences as set out in appendix 2. We would impose a total effective sentence of seven years' imprisonment with a non-parole period of five years.

92 As set out in appendix 2, we propose that a sentence of two years and three months' imprisonment be imposed for the first burglary that was committed by Soltan after he was released on bail (count 70 on the joint presentment); that this sentence be treated as the base sentence; that individual sentences of two years' imprisonment be imposed for each of the other counts of burglary; that the cumulation for some of the counts of burglary be adjusted; that the individual sentences for all the counts of theft be increased; and that there not be any cumulation in relation to the counts of theft.

93 Save to the extent shown in appendix 2, we would not order that any term of imprisonment imposed for an offence committed while Soltan was on bail be served cumulatively on the uncompleted sentences of imprisonment imposed on him.[31]

94 For the purposes of s 6AAA of the Sentencing Act 1991, we would declare that, but for Soltan's plea of guilty, we would have imposed a total effective sentence of nine years and nine months' imprisonment and set a non-parole period of six years and nine months.

95 We would set aside the sentences imposed below and, in lieu of those sentences, re-sentence Paranihi on each of the counts as set out in appendix 2. We would order cumulation of the sentences as set out in appendix 2. We would impose a total effective sentence of six years and three months' imprisonment with a non-parole period of four years and three months.

96 As set out in appendix 2, we propose that a sentence of two years and two months' imprisonment be imposed for the first burglary that was committed by Paranihi after he was released on bail (count 50 on the joint presentment); that this sentence be treated as the base sentence; that individual sentences of two years' imprisonment be imposed for each of the other counts of burglary; that the cumulation for some of the counts of burglary be adjusted; that the individual sentences for all the counts of theft be increased; and that there not be any cumulation in relation to the counts of theft.

97 Save to the extent shown in appendix 2, we would not order that any term of imprisonment imposed for an offence committed while Paranihi was on bail be served cumulatively on the uncompleted sentences of imprisonment imposed on him.

98 For the purposes of s 6AAA of the Sentencing Act 1991, we would declare that, but for Paranihi's plea of guilty, we would have imposed a total effective sentence of nine years' imprisonment and set a non-parole period of six years.

99 As we have stated at [11] above, Adams has appealed on the grounds that the sentences imposed on him infringed the parity principle and were manifestly excessive. We will consider these grounds in reverse order.

Were the sentences imposed on Adams manifestly excessive?

100 After referring to Adams' remorse, admissions and the assistance that he provided to the police in their investigation, Judge Jenkins concluded that Adams' guilty plea was a 'significant mitigating factor'.[32] Her Honour also concluded that Adams' voluntary withdrawal from the criminal enterprise, his seeking of medical assistance for his drug addiction and his pre-sentence stable employment were 'significant factors towards [his] prospects for rehabilitation'.[33]

101 Judge Jenkins said that Adams' offences were 'particularly grave examples of offending of this kind'[34] and described the offending as 'a large scale operation' that involved 'careful planning, timing and coordination'.[35] She held that, while Adams did not instigate the offences, his role in their execution was 'as important as any other co-offender'.[36] Her Honour took into account general and specific deterrence, the need to protect the community and the need for the sentences to reflect very strong community condemnation.[37]

102 On the plea, the Crown submitted that the sentencing range was five to seven years' imprisonment with a non-parole period of three to five years.

103 On the appeal, the Crown relied upon the sentencing outcomes in the cases to which reference was made at [61] above and upon Warwick [38]The Queen38 in support of its contention that the individual sentences imposed on Adams were within the sentencing range for those offences. The nature and gravity of the offending in those cases and the criminal history of the offenders varied significantly. We note, however, that in R[39] Solomon,39 Callaway JA, with whom Batt and Buchanan JJA agreed, described as 'stern ... but ... within the range available to the j[40]ge'40 individual sentences of four years' imprisonment, a total effective sentence of five years' imprisonment and a non-parole period of three years for a count of burglary and a count of theft arising from a single incident, where the offender made an early plea of guilty and cooperated with the authorities.

104 Judge Jenkins imposed individual sentences of two years' imprisonment for each of the counts of burglary. In our opinion, those individual sentences were within the applicable sentencing range for that offence.

105 Her Honour imposed individual sentences of between 18 months' and two years' imprisonment for each of the counts of theft. We do not consider that the individual sentences were outside the applicable sentencing range for the offence of theft, though we do consider that more moderate sentences could have been imposed having regard to the principle of totality and the orders for cumulation that her Honour was bound to make on the counts of burglary.

106 Having regard to the mitigating circumstances to which we have referred, the total effective sentence imposed on Adams, considered in isolation, was beyond the range available to Judge Jenkins, and was manifestly excessive.

107 That conclusion is reinforced when regard is had to the sentences imposed on Mantzalas by Judge Smallwood and to the sentences that we would impose on Soltan and Paranihi.

Is the parity principle infringed in relation to Adams' sentences?

108 As stated at [11] above, the Crown made two important concessions in relation to Adams. The first concession was that, if the sentences imposed on Soltan and Paranihi were not altered, the sentences imposed on Adams would infringe the parity principle. The second concession was that even if the sentences of Soltan and Paranihi were increased, having regard to the sentence imposed on Mantzalas, this Court should re-sentence Adams more leniently than Soltan and Paranihi. The Crown suggested that it would be appropriate to impose on Adams a total effective sentence of five years' imprisonment with a non-parole period of three years.

109 As we have proposed new sentences for Soltan and Paranihi, only the second of the Crown's concessions requires consideration. For the reasons that follow, that concession was properly made and the total effective sentence and non-parole period that the Crown has proposed should be adopted.

110 The sentences imposed on Adams by Judge Jenkins remain equal to or higher than the new sentences that have been proposed for Soltan and Paranihi. This is so notwithstanding the following factors that differentiated Adams' position from that of Soltan and Paranihi:

(a) compared to Soltan and Paranihi, Adams was involved in the offending over a shorter period and was convicted of a lesser number of counts;

(b) Adams voluntarily withdrew from the criminal enterprise in May 2007, whereas Soltan and Paranihi continued to offend until August 2007, including after they were charged and released on bail;

(d) Adams provided information to the police about the involvement of his co-offenders and signed a statement implicating them; and

(e) Soltan was the leader of the crew and effectively recruited Adams.

111 It will be recalled from [5] above that Mantzalas was convicted of 27 counts of burglary, one count of attempted burglary, 22 counts of theft, five counts of criminal damage and one count of trafficking in a drug of dependence. He was sentenced to a total effective sentence of three years and six months' imprisonment with a non-parole period of one year and [41]x months.41

112 The key differences between Mantzalas' circumstances and Adams' circumstances are that Mantzalas gave an undertaking to give evidence against his co-offenders; that Mantzalas was convicted of nine counts on the basis of his own admissions; and that Mantzalas was to serve his term of imprisonment in protection. Mantzalas, who was 52 years of age when he was sentenced, was also older than Adams. While these differences were material, they cannot justify such a significant disparity between the sentences imposed on Adams and the sentences imposed on Mantzalas.

113 The parity principle is engaged where the difference between an offender's sentence and the sentence of a co-offender is manifestly excessive and is such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.[42]

114 In the light of the matters to which we have referred at [110] to [112] above, the differences in the sentences imposed on Adams and the new sentences that are proposed for Soltan and Paranihi, and the sentences imposed on Mantzalas, are manifestly excessive and are such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. Appellate intervention is warranted to redress that justifiable sense of grievance.

115 We would set aside the sentences imposed below and, in lieu of those sentences, re-sentence Adams on each of the counts as set out in appendix 2. We would order cumulation of the sentences as set out in appendix 2. We would impose a total effective sentence of five years' imprisonment with a non-parole period of three years.

116 As set out in appendix 2, we have imposed an individual sentence of two years' imprisonment for each count of burglary, which has the effect of reducing the base sentence by six months. In addition, we have reduced the cumulation for most other counts of burglary; reduced the cumulation for handling stolen goods; reduced the individual sentences for destroying property; and removed the cumulation for destroying property.

117 For the purposes of s 6AAA of the Sentencing Act 1991, we would declare that, but for Adams' plea of guilty, we would have imposed a total effective sentence of seven years and nine months' imprisonment and set a non-parole period of four years and nine months.

SOLTAN: Convicted of 50 counts of burglary, 45 counts of theft, 1 count of attempted burglary and 6 counts of criminal damage.

PARANIHI: Convicted of 42 counts of burglary, 34 counts of theft, 1 count of attempted burglary and 10 counts of criminal damage.

ADAMS: Convicted of 19 counts of burglary, 16 counts of theft, 10 counts of destroying property, 1 count of handling stolen goods and 1 count of obtaining property by deception.

MANTZALAS: Convicted of 27 counts of burglary, 1 count of attempted burglary, 22 counts of theft, 5 counts of criminal damage and 1 count of trafficking in a drug of dependence. Sentenced to a total effective sentence of 3 years and 6 months' imprisonment with a non-parole period of 1 year and 6 months.

[1] DPP (Vic) v Paranihi (Unreported, County Court of Victoria, Judge Smallwood, 10 March 2010) ('Paranihi and Soltan Reasons for Sentence').

[2] R v Adams (Unreported, County Court of Victoria, Judge Jenkins, 23 April 2009) ('Adams Reasons for Sentence').

[3] In the absence of Soltan's guilty plea, the total effective sentence would have been six years' imprisonment and the non-parole period would have been four years.

[4] In the absence of Paranihi's guilty plea, the total effective sentence would have been five years and three months' imprisonment and the non-parole period would have been three years and three months.

[5] In the absence of Adams' guilty plea, the total effective sentence would have been 10 years and six months' imprisonment and the non-parole period would have been eight years.

[6] Paranihi and Soltan Reasons for Sentence, [27].

[7] Paranihi and Soltan Reasons for Sentence, [7], [9], [11].

[8] Paranihi and Soltan Reasons for Sentence, [11], [12], [21], [28].

[9] Paranihi and Soltan Reasons for Sentence, [33].

[10] Paranihi and Soltan Reasons for Sentence, [32].

[11] Paranihi and Soltan Reasons for Sentence, [16].

[13] [2010] VSCA 310 (29 November 2010).

[14] [2005] VSCA 82 (6 April 2005).

[15] [2010] VSCA 313 (29 November 2010).

[16] [2010] VSCA 9 (2 February 2010).

[17] [2009] VSCA 219 (2 October 2009).

[18] Sentencing Advisory Council, Sentencing Snapshot No 97: Burglary (2010) 5.

[19] Sentencing Advisory Council, Sentencing Snapshot No 76: Theft (2009) 5.

[20] R v Osenkovski (1982) 30 SASR 212, 212-13; R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 523.

[21] DPP (Vic) v Cook [2004] VSCA 11; (2004) 141 A Crim R 579, 586 [16], 589 [28]-[30], 591 [42], [43]. See also Markovic v The Queen [2010] VSCA 105 (5 May 2010) [14].

[22] See, eg, DPP (Vic) v Vucko [2008] VSCA 270 (18 December 2008) [23].

[23] See above [59].

[24] The question of whether disparity is capable of being a ground for a Crown appeal does not have to be considered in this appeal. It was discussed in R v Morex Meat Australia Pty Ltd [1995] QCA 154; [1996] 1 Qd R 418, 443-6; R v Radloff (1996) 6 Tas R 99, 106-8; Steer v The Queen [2000] FCA 462; (2000) 171 ALR 463, 466 [11], 468 [15]; R v Vincent [2006] NSWCCA 276 (28 August 2006) [19] and DPP (Tas) v McGee [2010] TASCCA 12 (15 September 2010) [38]. See also DPP (Vic) v Doherty [2002] VSCA 213 (19 December 2002).

[25] Cf Farrugia v The Queen [2011] VSCA 24 (11 February 2011) [26], [27].

[26] [2010] VSCA 350 (17 December 2010) ('Karazisis').

[27] Karazisis [2010] VSCA 350 (17 December 2010) [100].

[28] [2010] VSCA 154 (25 June 2010).

[29] [2010] VSCA 154 (25 June 2010) [35].

[30] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522; DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542 [10].

[32] Adams Reasons for Sentence, [88].

[33] Adams Reasons for Sentence, [89].

[34] Adams Reasons for Sentence, [107].

[35] Adams Reasons for Sentence, [98].

[36] Adams Reasons for Sentence, [98].

[37] Adams Reasons for Sentence, [105].

[38] [2010] VSCA 166 (23 June 2010).

[39] [2005] VSCA 82 (6 April 2005).

[40] [2005] VSCA 82 (6 April 2005) [7].

[42] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404, 405; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 323, 338; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610, 613; Kelly v The Queen [2011] VSCA 10 (20 January 2011) [6]; Spiteri v The Queen [2011] VSCA 33 (21 February 2011) [52]-[54].

Adams v The Queen; DPP v Paranihi; DPP v Soltan [2011] VSCA 77

At a glance

Court

Decision date

Before

Source

Judgment (189 paragraphs)

Adams v The Queen; DPP v Paranihi; DPP v Soltan [2011] VSCA 77 (30 March 2011)

Legislation Cited (1)

Cases Cited (6)