Caig v The Queen [2011] VSCA 359

1 Graeme Iain Caig ('the appellant') pleaded guilty in the County Court to 21 counts of burglary, 31 counts of theft, one count of obtaining property by deception, one count of possessing a drug of dependence, one count of possessing a Schedule 4 poison, and one count of being a prohibited person in possession of a registered firearm. Following a plea in mitigation, he was sentenced on 4 May 2010 as follows:

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Obtaining property by deception [s 81 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Prohibited person in possession of a registered firearm [s 5 of the Firearms Act 1996]

Possession of a Drug of Dependence [s 73 of the Drugs Poisons and Controlled Substances Act 1981]

Possession of a Schedule 4 Poison [s 36 of the Drugs Poisons and Controlled Substances Act 1981]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

More than $50,000 when combined with counts 43 and 44

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Burglary [s 76 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Impersonating a member of the police force (Summary Count)

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

S 6AAA Statement: 10 years' imprisonment with a non-parole period of 7 years and 6 months.

2 The appellant appeals against his sentence, pursuant to leave, on the ground that the total effective sentence and the sentences on counts 3 and 4 are manifestly excessive. In the development of his argument today, counsel also submitted that the judge should have fixed a shorter period of eligibility before parole.

3 It is unnecessary to set out the details of each count. In essence, the burglary and related theft counts arise from the appellant breaking into a number of different industrial premises, mainly in the Gippsland area, between June 2007 and August 2009, where he stole items, including copper cables, batteries, tools, trailers, tankers and fuel. The gross value of the property stolen was $654,000. Most of the property was not recovered, particularly the metals, which were sold as scrap, and the readily saleable power tools. The judge accepted that the appellant committed the offences to get money for his amphetamine addiction.

4 As to the chronology of events, the offending on counts 1 and 2 occurred between June and December 2007. The offending on counts 3 to 15 occurred between April 2008 and 10 June 2009, when the appellant was arrested. The appellant was released on bail and, in the period from 10 June to 25 August 2009, committed the offences the subject of counts 16 to 56.

5 When the appellant was arrested on 10 June 2009, he initially gave a no-comment interview. Several days later, however, he made what the judge described as 'essentially full admissions', which included taking the police to the Yallourn power station and the Hazelwood power station, from where he had stolen large amounts of copper. These thefts gave rise to counts 3 and 4 respectively, which were rolled-up counts. As to count 3, on about ten separate occasions in the period from April to October 2008, the appellant attended at the Yallourn mine at night in a four-wheel drive and stole copper cable with a total value of $159,600, which he sold as scrap.

6 The offending on count 4 was similar. On about ten separate occasions between August 2008 and June 2009, the appellant attended at Hazelwood and stole copper cable worth about $110,000. He also stripped three transformers, worth about $59,200, to get the copper components. He also caused damage which resulted in extensive clean-up costs (about $30,000) but was not sentenced for this aspect.

7 The appellant ultimately contacted the police on 3 September 2009 and made full admissions, although, as the judge said, he knew the game was up because the police had already executed a search warrant at the premises of the man who bought stolen goods from the appellant. The appellant offered to give evidence against his fence, and although he was never called upon to give evidence, the offer to assist the authorities was a matter the judge took into account in mitigation.

8 As the appeal focuses primarily on the theft counts, it is necessary to say something more about how the theft sentences were structured.

9 There were seven counts of theft relating to the period before the appellant was released on bail. As to rolled-up counts 3 and 4, where the total value of the property stolen was $159,600 and $110,000 respectively, the judge imposed sentences of 27 and 24 months respectively. The sentence on count 3 was the base sentence and six months of the sentence on count 4 was cumulated. As to the other five theft counts, the judge imposed sentences of three months on count 7, six months on each of counts 2, 10 and 12, and nine months on count 6. The value of the property stolen on these five counts ranged from $2,897 to $36,000. Only one month of the sentence on count 7 was cumulated.

10 Further, there were 24 counts of theft committed whilst on bail. These are all the thefts from counts 16 to 56. Fourteen of these counts received sentences of nine months, the value of the property stolen on these counts ranging from $1,000 to $7,500. The remaining ten counts received sentences of 12 months, the value of the property stolen on these counts ranging from $10,800 to $50,000. The judge cumulated two months of the sentences on counts 16, 17, 20, 29 and 39 and one month of the sentences on counts 38 and 44. In effect, this was one year of additional cumulation.

11 The appellant was aged from 33 to 36 at the time of the offending, and was aged 36 when sentenced. The judge referred to his good family support and work history after leaving school in year 10. He had used cannabis from age 16 to 33 and had also used heroin but stopped at age 30, at which time he took to amphetamines. The appellant had ADHD, which was only diagnosed when he was aged 33, although it was a factor in his leaving school early. A psychologist's report also indicated the presence of a learning disorder. The judge accepted that the appellant maintained a strong addiction to amphetamines up to the time of the present offending, but found that this provided no excuse for the offending. He later stated that he had given 'some weight' to the addiction and the ADHD diagnosis, even though counsel on the plea did not press the matter of the appellant's ADHD raising any Verdins issue.

12 As to the other matters in mitigation, the judge accepted that the early plea of guilty demonstrated some remorse, although not full remorse, as he did not implicate all buyers of the stolen goods. His preparedness to give evidence against his fence was also a mitigating factor. The judge also stated that his plea of guilty and admissions were important because without them much of the offending, particularly counts 3 and 4, would have been difficult to detect and prosecute. That was a 'very significant aspect' of the plea, for which the judge said he gave the appellant 'full credit'.

13 As against these matters, the judge noted that the appellant had 196 prior convictions from 11 previous court appearances between 1993 and 2008, including 169 prior convictions for dishonesty offences. The judge accepted that the bulk of the dishonesty offences arose out of one court appearance in 2002 (56 charges of obtaining property by deception, 43 charges of theft, and 45 charges of going equipped to steal) which tended to distort the total number of convictions.

14 However, his Honour considered that the material revealed a 'reasonably significant prior record showing fairly entrenched low-level criminality, clearly drug related', and that the appellant had not responded to lenient dispositions in the past. That said, the judge still regarded the appellant's rehabilitation prospects as fair to reasonable.

15 The appellant submitted that the total effective sentence was manifestly excessive as a result of the sentences fixed for counts 3 and 4 and too great an amount of cumulation in relation to other counts, which produced a sentence disproportionate to the criminality of the offending. In counsel's written case, he submitted that the judge had given too much weight to the decision in DPP v Vucko.[1] Counsel did not develop that today, but in view of the emphasis in the written case, the distinction between that case and the present ought be mentioned. It was a Crown appeal, where the Court held that, in respect of a guilty plea to 33 counts of burglary and 32 counts of theft, among other offences, an aggregate sentence of five years, with a non-parole period of three years, was manifestly inadequate and re-sentenced the respondent to an aggregate sentence of seven years' imprisonment, with a non-parole period of five years. Counsel submitted (as had been done on the plea) that the present offending was distinguishable from that case because the appellant mainly stole from large commercial premises, hence the offending 'lacked the aggravation present in domestic burglaries arising from the psychological impact of intrusion on personal space and threat to the integrity of the home, the loss of items to which there was personal attachment and the greater impact of the material loss'. Further, the appellant only had two prior convictions for burglary compared to the respondent in Vucko, who had many prior convictions for burglary and theft.

16 Counsel referred also in the written outline to other mitigating factors found by the judge and submitted that the circumstances demonstrated strong remorse, particularly given:

(a) the appellant voluntarily returned to the police to confess to substantial offending (especially counts 3 and 4) which otherwise would have gone undetected;

(b) the appellant's offer to give evidence against his fence. In this regard, the failure to name other receivers ought not have been regarded as derogating substantially from remorse; and

(c) the appellant's deliberate confining of his offending to large commercial premises, a matter relied on by the appellant in a letter he wrote to the sentencing judge.

17 It should be said that in developing the submissions today, counsel emphasised points (a) and (b).

18 It is unnecessary to set out the Crown's submissions, save to note that it was submitted that the sentences were within the range of a sound discretionary judgment having regard to all relevant factors, including sentences imposed in several cases said to be broadly comparable.[2]

19 In my view, the judge's thorough sentencing remarks demonstrate that his Honour had regard to all relevant matters referred to on the plea. The appellant's submissions essentially reiterated those matters, contending that the total effective sentence and the individual sentences on counts 3 and 4 ought to have been less if the judge had given proper weight to the various mitigating factors.

20 I am not persuaded that the sentences reflect a failure to give proper weight to the various mitigating factors, and particularly the appellant's admissions in relation to counts 3 and 4. At the outset of his sentencing remarks, the judge adverted to the fact that the offending on counts 3 and 4 came to light as a result of the appellant's admissions, without which the offences would have been very difficult to detect and prosecute. Later, the judge again referred to this aspect and stated that the guilty plea and admissions were a 'very significant aspect', for which the appellant was to be given 'full credit'. In my view, the sentences imposed on counts 3 and 4 reflect that proper weight was given to the guilty plea and admissions.

21 While it is true that, without the admissions, those offences - and others - may not have been detected, or at least the extent of the offending may not have been discovered, that did not change the fact that counts 3 and 4 were very serious examples of the offence of theft.

22 The judge did not specifically make a finding as to the relevance of the appellant's statement in the letter he sent to the judge that he targeted 'large companies or government facilities to try and minimise victims'. But, assuming in the appellant's favour that the judge did not take the statement into account, in my view it could not have assisted the appellant. True it is that the appellant's offending did not violate the sanctity of private homes or result in losses of irreplaceable personal items, yet the offending netted amounts of money greater than might have been taken from private homes, and in fewer trips. And while the appellant claimed that it took 'more effort' to steal in the way that he did, it might just as easily be said that home burglaries carried a greater risk of detection or at least a greater potential for things to go wrong if a person was home. There is no basis for suggesting that the particular choice of target diminished the need for general deterrence or in any way reduced his moral culpability.

23 Further, there is no substance in the suggestion that the choice of target reflected strong remorse. Rather, the judge correctly characterised the offending as 'premeditated, deliberate, bold, calculated and systematic'. It was systematic particularly in the context of the offending on counts 3 and 4, which involved repeated trips to the same locations over a period of more than a year. And the total offending the subject of the presentment occurred over a two-year period.

24 Further, the appellant committed the offences on counts 16 to 56 while on bail for the earlier offences. As the judge said, this fact brought into play the statutory presumption of cumulation,[3] subject to the discretion to order otherwise, informed by considerations of totality. The offences committed while on bail included theft of a petrol tanker and a trailer (later recovered), a ride-on mower, valued at $38,000 (also recovered), an industrial generator worth about $30,000, significant amounts of copper (from locations other than Yallourn and Hazelwood), and other valuable tools. In short, it was serious offending committed after the appellant had made the very admissions said to evidence strong remorse.

25 Also, the offending on counts 7 to 56 was committed while the appellant was serving a 12 month combined custody and treatment order imposed by the Magistrates' Court at Dandenong on 13 October 2008. Further, the appellant committed the offences on counts 1 to 3 while still under a suspended sentence (12 months' imprisonment, four months of which was partially suspended for 12

months) imposed on him by the Magistrates' Court at Korumburra on 25 January 2007 in respect of burglary, theft and other dishonesty offences.

26 Having regard to all of these matters, it was open to the judge to impose the individual sentences and make the cumulation orders he did.

28 I agree. The Court will order that the appeal be dismissed.

[1] [2008] VSCA 270.

[2] R v Poloni [2005] VSCA 177; R v Berry [2009] VSCA 219; R v Tinti [2010] VSCA 9; Adams v The Queen; DPP v Paranihi; DPP v Soltan [2011] VSCA 77.

[3] Sentencing Act 1991, s 16(3C).