DPP v Reid [2004] VSCA 105

DPP v Reid [2004] VSCA 105 - VSCA 2004 case summary — Zoe

[5]

The sentencing judge heard a plea for leniency, in the course of which he was handed a copy of the sentencing remarks of Judge Kelly of 9 October 1997 and one witness, a counsellor from Matchworks, a community based organisation providing, relevantly, a personal support program, was called on behalf of the respondent. His counsel began his plea by saying that his Honour had no choice other than to impose a gaol sentence that must be served immediately but that the term should not be a crushing one and that a sentence with a minimum term in the range of 18 months was appropriate in the circumstances. The latter were said to include the fact that the respondent was serving a term of imprisonment for previous offences when his co-accused, Natale Fratino, began to engage in his illegal activities and the respondent could not be positively linked to Fratino until mid-May 2001 despite the wider dates pleaded in the presentment, so that the period of offending was between mid-May 2001 and 12 June 2001; the fact that Fratino was the centre of the conspiracy; the respondent's willingness to plead guilty from the very first opportunity; the delay of one year and eleven months between the respondent's arrest and the plea, which was said to be through no fault of the respondent, the "sticking point" being whether he would agree to plead guilty to the conspiracy count as opposed to the individual overt acts; the fact that the respondent had spent, it was said, 18 years in gaol between the ages of approximately 20 and 50; that he remained on good terms with his estranged wife and four children; and that he had left school at the age of 13 and had no trade or other employment skills. It was submitted by the prosecutor that an immediate custodial sentence was the only appropriate one and his Honour was urged to take into account the respondent's prior convictions for dishonesty and the aggravating factor that the instant offences were committed while he was on parole. It was submitted that the offences had a degree of sophistication about them. The prosecutor did not disagree with the submission for the respondent that he had first been positively linked with Fratino in mid-May 2001 and agreed as to the "sticking point" about Count 4.

[13]

Before the grounds of appeal can be considered it is necessary to state briefly the facts of the offending. The goods the subject of Counts 1, 2 and 3 were single motor vehicles, valued at $49,000 in total. The goods that were stolen pursuant to the conspiracy the subject of Count 4 were six motor vehicles valued at a total of $123,500.00 or, more conservatively, about $110,000. The goods the subject of Count 5 belonged to seven persons and consisted principally of car parts stripped from stolen vehicles, tools and personal items taken from vehicles and some CD equipment and CDs. The goods the subject of Count 6 were tools belonging to two persons one of whose estimate of value was $4,500.00. The respondent came to the attention of police as a result of their investigation and surveillance (by observation and telephone intercepts) of Fratino. The latter, a previous associate of the respondent's, was involved in the systematic theft and dismantling of motor vehicles for profit. Generally the motor vehicles were stolen by Fratino in company with an associate who would drive Fratino's car whilst he drove the stolen vehicle. After being stolen, the vehicles were stored at various places and later "rebirthed" (that is, given a different identification number or registration plate) or dismantled for parts. Fratino generally stole vehicles to order of his associates, but also stole vehicles for parts. A number of vehicles and stolen goods from cars stolen by Fratino were found at two properties occupied by the respondent when search warrants were executed there on 12 June 2001. The properties were in St Albans and at Woodend, the latter being leased by the respondent under a false name, "Steve Davies". Counts 1 and 6 relate to goods found at the Woodend property, and Counts 2, 3, and 5 relate to goods found at the St Albans property. So far as Count 4, the conspiracy count, is concerned, surveillance evidence and telephone intercepts show Fratino making arrangements for the theft of motor vehicles and the respondent being contacted shortly thereafter to assist. His role included the theft and retention of vehicles, driving Fratino to vehicles to be stolen, and delivering stolen vehicles.

[18]

I do not find it necessary to consider ground 2 or whether, if it was established, it would still be necessary for the appellant to show that the sentence was manifestly inadequate, and I shall consider the substance of ground 3 only under ground 1. In opening the appeal appellant's counsel stated that, without abandoning the other complaints, the real or primary complaint related to the non-parole period. Five propositions were advanced for the appellant in support of ground 1. First, the offences were all serious. Attention was drawn to the substantial maximum penalties for them. It was submitted that the handling offences related to a course of conduct engaged in by the respondent over a period of time at two different addresses. The offending was part of a sophisticated professional operation involving the "rebirthing" or stripping of cars and the seizure of goods found in the cars. It was submitted that the sentences of 12 months for Counts 1, 2, 3 and 6 and the sentence of 9 months for Count 5 were quite inadequate in the circumstances given that the respondent had a long history of similar offending and was on parole at the time of the subject offending for exactly the same type of thing. The conspiracy count involved the respondent in the theft of some 6 cars valued at over $110,000 over a period of several weeks and was thus a serious example of its kind. The respondent had prior convictions for larceny, stealing, robbery, burglary and theft. Given his prior convictions the sentence of 12 months' imprisonment on Count 7 was likewise inadequate. The respondent had a prior conviction for trafficking and his motivation for the cultivation was simply commercial. In the circumstances, with the cumulation being limited to the first three counts, the total effective sentence was manifestly inadequate, particularly given the prior convictions and the fact that the offending occurred while the respondent was on parole. Further, the non-parole period was grossly inadequate. The disparity between the head sentence of 4 years and the non-parole period of only 18 months was not explained by the sentencing judge and was inexplicable. This was contrasted with the non-parole period of 4 years his Honour fixed in the case of Fratino, who had not been on parole.

[20]

The respondent's written submissions began with a reference to the principles applicable to Crown appeals, submitting that, in order to succeed on a complaint of manifest inadequacy, the appellant must show such inadequacy as to demonstrate error in point of principle. The case must be "rare and exceptional"[4]. Nothing raised in the particulars brought the case within those categories. The respondent then controverted the appellant's contentions, submitting that the judge referred to the maximum penalties and to the circumstances of the offending, to general and specific deterrence, to the mitigating factors of his pleas of guilty, the counselling he had undertaken and his personal circumstances, and to his criminal history. In relation to the gravity of the offending, it was pointed out that it spanned only about a month and that the property was recovered (though not, as I understand it, the stripped parts or all the stolen contents). It was then submitted that there was nothing to suggest that his Honour did not properly assess the gravity of the offending, did not accord appropriate weight to general and specific deterrence or the respondent's criminal history or accorded inappropriate weight to the mitigatory factors. It was next submitted that his Honour had balanced, correctly, the fact that the offences were committed during parole for similar offences and, on the other hand, the resulting potential for the respondent to be reclaimed by the Adult Parole Board. His Honour had in passing individual sentences and making orders for cumulation correctly "moderated and cumulated" and taken all relevant matters into account. It could not be said that the orders for cumulation were inadequate, when the entirety of the sentences on Counts 1 and 2 and half that on Count 3 were cumulated upon that on Count 4. In relation to the non-parole period, it was submitted that, whilst it was comparatively low, it was not outside the range open to the judge, who had been impressed that the respondent had been seeing a counsellor over the last 8 months and was concerned not to allow his son to become involved in crime. Those factors, together with his pleas of guilty and other personal circumstances, went to his prospects of rehabilitation. A most important consideration in that regard was that he had in a lengthy period (2½ years) between arrest and sentence set about rehabilitating himself. Those factors, combined with the respondent's liability to be reclaimed by the Adult Parole Board, justified the leniency afforded by the judge. It was then pointed out that a sentencing judge had to balance the various sentencing considerations in the context of particular facts presented. Courts had often said that where there was evidence of rehabilitation it ought to be seized upon, and authority was cited. The written outline concluded by submitting that, even if the court was of the view that there was manifest inadequacy, this was not a very clear or rare case such as to warrant the allowing of the appeal and a re-sentencing. Rather, the discretion to afford leniency by not intervening should be exercised. To that was added a further consideration that, it was submitted, should lead to the dismissal of the appeal, whether on the merits or as a matter of discretion. This was the existence of the sentences imposed on Fratino. On the same conspiracy count he had received a three months shorter head sentence even though their criminal histories were, it was said, similar and he had offended over a longer period and in a wider conspiracy.

[24]

In this case, I have come to the conclusion that the non-parole period of 18 months is manifestly inadequate. The following are the principal factors leading me to that conclusion. Its relationship to the total effective sentence of 4 years' imprisonment is most unusual, as his Honour recognised, and quite different from that in Fratino's sentence, and the only explanation given for that was that it was imposed to take account of the fact that the respondent's offending occurred while he was on parole, "and the consequences of this". It was, of course, the period suggested by the respondent's counsel in opening the plea. Something seems to have gone wrong in the reasoning, for an aggravating factor (offending while on parole) has led, not to an increased sentence, but to a greatly reduced sentence or, rather, part of the sentence. This cannot be justified by reference to s.16(3B) of the Sentencing Act. The correct approach to be taken to s.16(3B), particularly when the Parole Board has made no order, was enunciated in R. v. Orphanides[7], where the earlier cases of R. v. Ponton[8] and R. v. Berkelaar[9], relied on by the respondent, were discussed.[10] As Phillips, J.A. stated in Orphanides[11], s.16(3B) was intended to achieve cumulation in the absence of "exceptional circumstances" and an order for concurrency, not a reduction in the sentence being imposed because of the principle of totality. But, as his Honour went on to state[12], that is not to say that the sentencing court does not take into account the provision made by s.16(3B). It should, but it does so by recognising what the possibilities are, being those under s.77 of the Corrections Act as s.16(3B) contemplates. As Callaway, J.A. said in R. v. Barnes[13] by reference to Orphanides, the position of an offender such as the respondent is to be taken into account "as a general sentencing consideration". Here, it is plain that the sentencing judge went beyond that. He seems to have reduced the non-parole period by nearly the whole period of 2 years which the respondent "owed" the Parole Board. This is not a case where the judge allowed the possibilities, or the general sentencing consideration, merely to moderate or perhaps even negate the aggravating factor. They turned it on its head. As Vincent, J.A. pointed out during argument, one might understand the "possibilities" affecting the total effective sentence (and only consequentially the non-parole period), but here they seem to have been allowed to have an additional and special effect upon the non-parole period. The argument for the respondent appeared to me to treat the word "liability" (to serve the parole period under the previous sentence) as though it meant an actual liability, that is, obligation, to serve that period, when in fact it means in this context a potential liability or obligation. Finally on s.16(3B), I point out that what I have said does not depend upon a view that his Honour laboured under a mistake of fact as to what the Parole Board had done.

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