Court of Appeal (Vic)|2010-11-29|Before: NETTLE and BONGIORNO JJA

Ciantar & Rose v The Queen [2010] VSCA 313 (29 November 2010)

R v Ciantar and Rose (Unreported, County Court of Victoria, Judge Parsons, 24 April 2009)

1 These are appeals against sentences of imprisonment imposed on the appellants on 24 April 2009 on pleading guilty to one count of conduct endangering persons, two counts of burglary and one count of possessing explosives without lawful object and, in the case of the appellant Ciantar, to a further count of possession of a drug of dependence.

2 The maximum penalty applicable to each offence, and the individual sentences and the orders for cumulation made in each case, were as follows:

3 The circumstances of the offending are described in the judge's sentencing remarks. On Wednesday 15 October 2008, police began surveillance of both appellants which they continued on 16 and 17 October 2008. On 16 October 2008, at approximately 11.50 pm Rose was observed driving a silver Mitsubishi with Ciantar in the passenger seat in Lexton Street, Coolaroo industrial estate. Police watched the appellants park the vehicle and walk into the yard of MFJ Constructions, which contained two locked explosive magazines, before moving off again at about 12.00 am.

4 At 1.42 am on Friday 17 October 2008, they were seen parked on Fairways Boulevard, Craigieburn. Police observed Rose open the boot and Ciantar looking off the bridge into the lake before returning to the vehicle and driving away.

5 At around midday, police attended the lake and retrieved a red wooden box marked 'explosives' from the water. It contained a grey Nike top; thirteen brown coloured sealed medicine bottles containing liquid being an unknown children's medicine; and one blue/grey safe with an electric keypad.

6 At approximately 2.58 am, the appellants were observed parked in Cummins Drive, Somerton industrial estate. Rose was seen to open the boot and lay unknown items (later identified as explosive detonators)[1] across the road. Both appellants then moved back to the vehicle and a short time later a small pop was heard. After that, the appellants were seen to move towards the items and inspect them before driving away.

7 Once they had driven off, police moved in and observed a non-electric detonator attached to approximately two metres of safety fuse in the middle of Cummins Drive. There was also an electric plunger and key connected to four to five metres of electric wires and to a fired detonator. The items recovered were one metre of burnt safety fuse; one Cobra brand signal tube initiator; one copper coloured detonator (class 1.1B explosive); one signal tube detonator (class 1.1B explosive); and four metres of black and red connector wires.

8 Expert evidence established that the risk of fire was minor, because the appellants lacked the expertise or did not have all the components necessary to fire the devices. Nevertheless, the way in which the appellants had dealt with them in the open represented a significant hazard to persons in the vicinity. Test firing of detonators is 'usually done with detonators in a steel pipe' to avoid the risks of detonation. Firing them in the open was 'extremely dangerous' because they could have been detonated by 'shock, impact or heat'. (Those are the facts which comprised Count 1).

9 Some time later, at approximately 3.15 am, the appellant's vehicle was observed back at MFJ Constructions. A hole had been cut in the gate of a neighbouring property, a second hole had been cut in the cyclone fence separating the properties, and a third hole had been cut in the cyclone wire fence surrounding the explosives magazines. A steel door, labelled 'explosive detonators', had been jemmied open and the wooden framed door surrounding the steel safe labelled 'explosives' had been removed. Police heard drilling sounds and observed torch lights and occasional banging coming from within. (Those are facts which comprised Count 2, burglary.)

10 At 4.18 am, the Mitsubishi was seen exiting Donat Court, Craigieburn (Rose's home). He and Ciantar had gone there to obtain a Bosch electric grinder. A search warrant was later executed at the premises and police found there in the rear of a vehicle owned by Ciantar a box of electric igniters (detonators) (class 1.4S explosive) which had been stolen from MFJ Constructions during the earlier burglary.

11 At approximately 4.40 am, the appellants were observed parked on Lexton Street, Coolaroo. They exited the car, took items from the boot and went back into the MFJ premises. More banging noises followed and, at approximately 5.20 am, the appellants were seen walking back towards their vehicle, carrying boxes which they placed in the boot and back seat of the car. (Those are the facts which comprised Count 3, burglary.)

12 Rose and Ciantar were arrested at approximately 5.21 am. Ciantar was found to be in possession of a small amount of methyl amphetamine (Count 5).

13 Police then searched the vehicle and found in the boot, the Bosch electric grinder, one box of electric igniters (detonators) (class 1.4S explosive), one coil of 200 metres of orange coloured safety fuse (class 1.4S explosive), one part reel containing 200 metres of orange five gram per metre detonator cord (class 1.1D explosive); one box containing 148 cartridges of Orica brand Magnum 365 Powergel blasting explosive (Class 1.1D explosive), 11 penetrating cone fracture cartridges (class 1.4S explosive); two safety fuse bean hole connectors (class 1.4S explosive), 16 signal tube detonators (class 1.1B explosive), four coils of brown safety fuse (class 1.4S explosive) and one electric fuse head (class 1.4S explosive). Those are the facts which comprise Count 4. The police also found various tools including purple bolt cutters, a crow bar, a reciprocating saw, a screwdriver, chisel and mallet, a cut-off blade and a tool box containing various items, and in the glove box, ICI brand detonator crimping pliers.

14 On searching the premises, it was found that the appellants had forced entry into another larger shed by pulling the door hinges. They were then able to grind the hinges off the safe labelled 'explosives' using a power source from within the larger shed and had removed explosives from within.

15 Expert evidence established that, in cutting open the safe in the way they had, the appellants had faced a very high risk of fire and detonation of the explosives. In the event of detonation, persons in vehicles or buildings within 50 metres would have been at risk of death or serious injury. Persons in the open within one kilometre would also have been at risk of death or serious injury.

16 The personal circumstances of each appellant also appear in the judge's sentencing remarks. Rose was 24 at the time of sentencing. He was born in Melbourne and left school at the end of Year 10, after which he completed a four year bakery apprenticeship. He then took up work in the glazing industry, but lost that job in 2007 when his employer lost a large contract. He began then to use drugs and acquired a habit costing $200 a day, which is why he stole. He was, however, in a long term relationship with a young woman and lived with her and their two children with Rose's parents, and he stated that he had a strong wish to be with them.

17 At the time of sentencing he was housed in Fulham Prison, but before that the longest period he had spent in prison was 42 days. While in prison he had undertaken various courses and was on the waiting list to train for a forklift driver's licence. There was evidence that he had an offer of employment open to be taken up on his release from prison and, in a letter to the court, he stated that he wished to desist from criminal conduct in order to be with his children, and now he realised the need to change his ways and make a fresh start.

18 Ciantar was 22 at the time of sentencing and lived with his mother, father and sister. He left school at the age of 16 and was apprenticed to become a carpenter. But he began using amphetamines at the age of 18 and lost the apprenticeship. Thereafter he worked in several unskilled and semi-skilled capacities until his drug consumption got the better of him. It increased to daily use of a gram of amphetamines and he offended to maintain his habit. He was gaoled for earlier offending and when released he could not find employment. That was said to have made him depressed and to take up amphetamines again. Pending trial, he was held in the Melbourne Remand Centre, where had very limited access to courses, and he put on 20 kg. It was claimed that his ambition was to get out of prison and wash trucks and it was submitted on his behalf that he had good prospects of rehabilitation.

19 A psychological assessment prepared in 2008, when he was sentenced for earlier offending, classified him as 'sensitive young man, with limited insight into his feelings who [had] embarked on a trajectory of drug abuse and offending behaviour commencing approximately two years ago' and whose incarceration had allowed him to reflect on his behaviour and brought him to resolve to change his path. As the judge observed, however, that had not deterred him from re-offending.

20 In his sentencing remarks, the judge stated that the appellants' prospects of rehabilitation were limited. As his Honour put it:

Although one can never give up hope of your eventual rehabilitation there is precious little before me to suggest that there is any great likelihood of that. I understand that you have each, through your counsel and in your case, Rose, in a letter, sought to explain that you want to turn a corner and rid yourself of drug addiction and return to a non-criminal life. Given your previous convictions, the extent of your offending and your repeated attempts to secure the explosives on this evening whilst you were both on Intensive Corrections Orders, one could not have any great hope that your planned rehabilitation will be successful, although I must seek to maximise such chances of your rehabilitation as there may be.

21 It was contended on behalf of Rose that the judge erred in that assessment. Counsel for Rose submitted that Rose's prospects of rehabilitation were considerably better than that, given that, on the material before his Honour, Rose fell to be sentenced as a relatively youthful offender; he had an established work record, having completed a four year apprenticeship in baking and six years of full time employment; his scale of previous offending had been at a low level until he lost his job and his drug use escalated; and by the time of sentence, he had taken positive strides in custody towards rehabilitation. He had also put in place a number of positive measures for his rehabilitation upon release, he had prospects of obtaining full time employment when released, it was planned that upon his release he should live with his parents, partner and two young children, and he had demonstrated remorse and a desire to turn his life around.

22 We do not consider that the judge's assessment was erroneous. Rose had a significant criminal history and he was a recurrent re-offender. Up to 2008 his offending was relatively minor, but in that year it became much more serious. On 17 January 2008 he was convicted in the Magistrates Court at Bendigo on three counts of burglary, three counts of theft and an attempt to commit an indictable offence for which he was sentenced to an aggregate term of imprisonment of 42 days to be served by way of an intensive correction order.

23 On 14 February 2008 he was convicted in the Magistrates' Court at Heidelberg of a range of offences including attempted theft, assaulting a police officer, going equipped to steal and fraudulently altering identification, for which he was sentenced to an aggregate term of imprisonment of four months to be served by way of an intensive correction order.

24 On 5 August 2008 he was convicted in the Magistrates' Court at Broadmeadows of five counts of theft and of handling stolen goods, for which he was sentenced to an aggregate term of imprisonment of five months to be served by way of another intensive correction order.

25 As with the subject offending, all of those previous offences were the result of Rose's use of drugs and were committed to obtain funds to purchase drugs. As with the subject offending, when sentenced for those earlier offences, Rose expressed the intention of turning the corner and putting his life back in order. On each of those earlier occasions, he was put on an intensive correction order to facilitate his professed objective. But on each of those earlier occasions, he failed to avail himself of the opportunities thus afforded him, and committed further offences during the currency of the order.

26 On 15 November 2008 he was convicted in the County Court at Melbourne of a Commonwealth offence of fraud, for which he was sentenced to six month's imprisonment and, by the time he came to be sentenced for the subject offences, he had also been before the Magistrates' Court at Broadmeadows on theft and burglary charges and a breach of the intensive corrections order of 4 August 2008. Significantly, those offences were also said to be the result of drug addiction and, even by the time he stood to be sentenced for the subject offences, Rose still had to overcome his drug addiction.

27 In the circumstances, it appears to us that the judge's assessment of Rose's prospects of rehabilitation was warranted. True, Rose had in the past been gainfully employed and had a family and other reasons to make a success of his life, and evidently he also had support if he wished to avail himself of it. But that had also been the case when he was sentenced to intensive corrections orders in 2008, and on each of those occasions he had squandered those opportunities and continued to offend.

28 The thrust of the argument advanced on behalf of Rose under Ground 2 was that, although the judge accepted that Rose's plea of guilty was entered at the first available opportunity and was indicative of remorse, it was apparent from the judge's s 6AAA declaration that his Honour did not allow a significant sentencing discount.

29 In the s 6AAA declaration, the judge said that, but for the plea of guilty, he would have imposed a total effective sentence of nine months more than the total effective sentence of four and half years and set a non-parole period of six months more than the non-parole period of three years and three months. It follows that the judge allowed a discount of only 14.3 per cent on the total effective sentence and of 13.3 per cent on the non-parole period. We accept that, prima facie, it is a smaller discount than one might have expected.

30 It does not follow, however, that the discount is indicative of error. Here there are at least three considerations in addition to the raw percentages which need to be borne in mind. The first is that part of the reason for allowing a discount for a plea of guilty is that, to the extent that it reflects genuine remorse, it may suggest improved prospects of rehabilitation. Here that was not the case. As we explained when dealing with Ground 1, we consider that the judge was entitled to conclude that the prospects of rehabilitation were problematic.

31 The second point is that, while part of any discount for a plea of guilty is intended to reflect the utilitarian value of avoiding the time and cost of a trial, another aspect of it relates to the extent to which the plea may be taken to manifest the offender's remorse, acceptance of responsibility and willingness to facilitate the course of justice. Although it has been held that the utilitarian value of a plea of guilty is not affected by the strength of the Crown case,[2] the strength of a Crown case may cast doubt on the extent of an offender's remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice[3] and so result in a lesser discount than one would otherwise suppose.[4] Here, as the judge observed, the appellants were caught 'red handed', by which we take the judge to have meant that there would have been little doubt about them being convicted if they had stood trial, and that suggests that his Honour had reason to doubt the extent of their contrition.

32 The third point, and by no means the least important, is that the question for present purposes is not so much whether the discount, when expressed as a percentage of the sentence the judge said he would have imposed, was adequate, but whether the total effective sentence and non-parole period at which the judge arrived after allowing for such discount as he said he allowed were excessive.[5]

33 In this case, we do no think they are. But for the plea of guilty, we should have expected a higher total effective sentence and non-parole period than the judge stated he would have imposed, so that even if one were to allow a greater level discount, the results would be more or less the same as the total effective sentence and non-parole period at which the judge arrived.

34 Counsel for Rose adopted a submission put by Counsel for Ciantar, based on an observation in R v Howard[6] that:

For a judge to give too much or too little weight to a sentencing consideration is not necessarily sentencing error but where it is manifest, as it is here, that a sentencing judge has grossly undervalued the importance of the discount for

pleading guilty, it may be viewed as sentencing error and the sentencing discretion re-opened.

35 The difficulty with that, however, is that, in Scerri v R,[7] Maxwell P and Buchanan JA came to a different view. Their Honours held that the discount allowed on a plea of guilty is not examinable for specific error and can never be more than a particular ground of manifest excessiveness. Counsel for the appellant also referred to Sharkey v R[8] and Dow v R,[9] in which Ashley and Weinberg JJA expressly left the question open. Those decisions, however, were expressed to be without precedent value and should not have been cited. The designation 'without precedent value' means what it says.

36 Both counsel submitted that this court should decline to follow Scerri. We are not disposed to do so. To the extent that there is a difference between Howard and Scerri, we consider that it should be resolved in the context of a case where it is likely to affect the outcome. That is not so in this case. Here, regardless of which view is taken, the result will be the same. It is not enough for the appellant to establish the existence of sentencing error. This court should not intervene unless persuaded that a different sentence should be imposed. For the reasons already given, we are not persuaded of that.

37 The principal argument advanced in support of Rose's third ground of appeal was that, since the offences for which he was sentenced were committed in the space of only a few hours, as parts of what were said to have been a single continuing criminal enterprise, it was incumbent on the judge to order a far greater degree of concurrency as between the individual sentences.

38 We do not consider that there is any substance in that point either. For even allowing that the offences were committed within the space of only a few hours, and in that sense might be seen as parts of a single criminal episode, the second offence of burglary added considerably to the criminality of the first and the offences of burglary were separate and discrete from the conduct endangering persons and possession of explosives. In our view, the judge's orders for cumulation were consistent with those facts.

39 Last on this aspect of the matter, in the course of oral argument counsel for Rose advanced a new point in support of his contention that the judge failed to observe the principal of totality, which was that his Honour had not made any allowance for the fact that Rose had been sentenced to six months' imprisonment on 15 November 2008 and thus in effect served six months' of dead time, or pre-sentence detention which was 'doubly warranted', in relation to the subject offences. Counsel for the Crown conceded that it appeared to be so, inasmuch as the judge had imposed an identical sentence on Ciantar, to whom that consideration did not apply.

40 We accept that submission. It is apparent that the judge overlooked the need to make an allowance for that dead time in the broad sort of way contemplated in R v Renzella.[10] We propose to make an allowance of four months in respect of it.

41 Finally, in Rose's case, it was contended that the individual sentences, orders for cumulation and non-parole period were manifestly excessive, given Rose's plea of guilty, remorse, relative youth and efforts at rehabilitation.

42 It should be apparent from what we have already said that we do not agree. Notwithstanding Rose's age, we take the view that his antecedents, repeated offending in face of previous beneficent sentencing dispositions and limited prospects of rehabilitation dictated a substantial sentence and non-parole period in order to provide adequate general and specific deterrence and thus community protection. All things considered, we think the sentence and non-parole period were within the range of sound sentencing discretion.

43 In the case of Ciantar, it was contended that the individual sentences, orders for cumulation and non-parole period were manifestly excessive, for a similar range of reasons as were urged on behalf of Rose, and because this was his first custodial sentence. Reference was also made to R v Dupuy[11] in which a sentence of 20 months' imprisonment was imposed for making explosives and R v Bowen[12] where a sentence of four months' imprisonment was imposed for possession of explosives, and it was contended that, compared to those sentences, the sentence of two years' imprisonment imposed on Count 4 was manifestly excessive.

44 Those submissions are not persuasive either. In R v Dupuy the offender was afflicted by a severe mental condition. The sentence was reduced accordingly. In R v Bowen, the sentence of four months' imprisonment was in our view remarkably merciful and was probably accounted for by the fact that the majority of the criminality comprised in the offence resided in a more serious offence of maliciously causing an explosion to which the offender also pleaded guilty,[13] and perhaps also by some modification of individual sentences in order to avoid a crushing total effective sentence.[14] Either way, we do not consider the sentences imposed in those cases ought be taken as indicative of current sentencing practices or that they are otherwise of much assistance in the present case.

45 The individual sentences imposed on the counts of burglary are wholly unremarkable, and so far as the offence of possessing explosives without object is concerned, the short point is that, in a case of this kind, it requires stern punishment to provide adequate general and specific deterrence and consequent community protection. In the circumstances of this case, we do not think that an individual sentence of two years' imprisonment was beyond what was called for.

Ciantar - Grounds 2 & 3 - Orders for cumulation and discount for plea of guilty

46 Finally, in Cianatar's case, submissions were made as to the judge's orders for cumulation and the discount his Honour allowed for the plea of guilty. Essentially, they were similar to the corresponding submissions advanced on behalf of Rose. We reject them for the reasons already given.

47 For those reasons, we would allow Rose's appeal in part but dismiss Ciantar's appeal.

48 In the case of Rose, we shall set aside the sentence passed on Count 2 and in lieu thereof re-sentence Rose on that count to two years and two months' imprisonment. Otherwise, however, we confirm the individual sentences passed below and the orders for cumulation, with the result that the total effective sentence for Rose will become four years and two months' imprisonment. We shall set a new non-parole period for Rose of two years and 10 months.

[1] One metre of burned safety fuse, one Cora brand signal tube initiator, one copper coloured detonator, one signal tube detonator and four metres of black and red connector wires.

[2] R v Pajic [2009] VSCA 53; (2009) 23 VR 527, 532 [20].

[3] Cameron v The Queen (2002) 209 CLR 339, 346 [22].

[4] Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, 663-4 [22]-[23]; R v Thomson; R v Houlton (2000) 49 NSWLR 383, 412 [118].

[5] R v Burke [2009] VSCA 60; (2009) 21 VR 471, 477; Giordano v R [2010] VSCA 101, [45]-[46]; Diver v R [2010] VSCA 254, [26]; Birrell v R [2010] VSCA 262, [27]-[28]; Scerri v R [2010] VSCA 287, [23]-[24].

[13] Pearce v The Queen (1998) 194 CLR 610, 623 [40].

[14] DPP v Grabovac [1999] 1 VR 664, 676.

Ciantar & Rose v The Queen [2010] VSCA 313

At a glance

Court

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Judgment (69 paragraphs)

Ciantar & Rose v The Queen [2010] VSCA 313 (29 November 2010)

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Cases Cited (6)