DPP v Reid [2004] VSCA 105

7. On 11 November 2003 the respondent, Stephen Glen Reid, who was born on 4 May 1949, pleaded guilty in the County Court at Melbourne to five counts of handling stolen goods[1], one count of conspiracy to steal, one count of theft of electricity and one count of cultivating a narcotic plant (cannabis). The maximum custodial penalties applicable to those offences were imprisonment for 15 years for handling stolen goods, for 10 years for conspiracy to steal and for theft and, in the circumstances of this case, for 15 years (with an additional or alternative penalty of a fine of $100,000) for cultivation. The applicant admitted 70 prior convictions from 21 appearances before the Magistrates' Court, the Court of General Sessions_,_ the County Court and the Supreme Courts of Victoria and Tasmania from 1967 to 1997. They were mainly for driving and property or dishonesty offences, though there were also several offences of violence. Of particular relevance for present purposes were convictions for possession of property reasonably suspected of being stolen (2), assisting in the disposal of stolen goods, handling stolen goods and, in particular, 30 of the 31 convictions sustained in the County Court at Ballarat on 9 October 1997, which were convictions on 28 counts of handling stolen goods, one count of theft and one count of trafficking in cannabis. The respondent was sentenced on that occasion to a total effective sentence of imprisonment for five years and six months with a non-parole period of three years and six months.

10. 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. On 17 December 2003 his Honour sentenced the respondent to be imprisoned for the following terms of imprisonment on the respective counts:

The judge directed that the sentences imposed on Count 1 and 2 and six months of the sentence imposed on Count 3 be served cumulatively upon the sentence imposed on Count 4 and upon each other and that otherwise the sentences be served concurrently with those sentences and with each other, so that the total effective sentence was imprisonment for four years, and directed that the respondent serve a minimum term of 18 months' imprisonment before being eligible for release on parole. His Honour noted that he had "imposed a lesser head sentence and a lesser than usual non-parole period to take account of the fact that [the respondent's] offending occurred while [he was] on parole, and the consequences of this", as he had discussed earlier in his sentencing remarks. His Honour then made a declaration that 99 days' pre-sentence detention be reckoned as already served under the sentence he imposed. He made a disposal order with respect to the cannabis and cultivating equipment and a restitution order in favour of Powercor (Australia) Ltd for $1,734.30, the cost of the electricity was subject of Count 7.

25. In his sentencing remarks his Honour stated that he sentenced the respondent on the footing that his offending did not start before May 2001. He said that the fact that it occurred while the respondent was on parole for similar offences was a matter of serious concern. He took into account his prior convictions in the manner indicated in Weininger v The Queen[2] and took into account in the respondent's favour that he had pleaded guilty but he noted that from an early stage the respondent had been prepared to admit to the offending conduct and that the delay in finally entering a plea resulted from a disagreement between the respondent and the Crown as to the precise form of presentment to which he should plead in respect of the matters the subject of Count 4. His Honour noted to the respondent's credit that he had for eight months been seeing the counsellor from Matchworks, who had stated that he had been hopeful of obtaining some form of employment for the respondent and that he would renew his efforts upon the respondent's release from custody. The counsellor stated that the respondent was a good father to his youngest son and anxious that the latter not become involved in a life of crime. Obviously, his Honour said, both general and special deterrence were relevant sentencing factors. He referred to s16(3B) of the Sentencing Act 1991, saying that there were no exceptional circumstances in the case; s5(2AA) of that Act; and s77(7) of the Corrections Act 1986. He then said that he adopted the same approach as had the sentencing judge in R v Berkelaar[3], where the Court of Appeal approved that judge's statement that he had considered the whole of the gaol time which the offender might be required to serve as a result of the parole sentence and the sentence then being imposed. His Honour then proceeded to impose the sentences that I have set out earlier.

28. The Director of Public Prosecutions has appealed pursuant to s567A on grounds which may be summarised as:

1. The individual sentences, the total effective sentence and the non-parole period are each manifestly inadequate. By way of particulars, it was alleged that the judge failed to reflect adequately the gravity of the offences; failed to take into account sufficiently or at all general deterrence and specific deterrence; and gave too much weight to mitigating factors and insufficient weight to the respondent's prior criminal history.

2. The judge contravened s5(2AA)(a) of the Sentencing Act by making an assumption as to the future actions of the Adult Parole Board.

3. The judge erred by applying s16(3)(B) of that Act despite the respondent's parole not having been cancelled.

34. 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.

37. When the warrant was executed by police at the respondent's Woodend property, it was discovered that the electrical system had been tampered with so that electricity supplied would not be recorded through the metering equipment of the retail supplier, Powercor Australia Ltd. Police also discovered a hydrophonic set-up with approximately 32 cannabis plants.

40. The respondent was arrested at his St Albans property and interviewed the same day at the Sunshine Police Station. He gave essentially "no comment" answers.

43. The instant offences have marked similarities to those for which the applicant was sentenced by a Judge Kelly on 9 October 1997 after he had pleaded guilty. Speaking of the earlier offences, Judge Kelly stated that the police raided on separate occasions two houses in the occupation of the respondent. On each occasion they found "an Aladdin's cave of stolen property". On the second occasion they also found a thriving but as yet immature hydroponic crop of cannabis and it was plain that electricity to the value of some thousands of dollars had been stolen to feed the crop. The police had been motivated to search the first of the houses by finding the respondent in the van driven by Fratino on the Great Ocean Road when enquiring into a series of burglaries at holiday houses. Some of the property recovered from the respondent's home had come from those burglaries. Judge Kelly said that it was quite plain that the respondent was a trusted member of a gang of criminals engaged in large burglaries of houses and the theft of motor vehicles. His Honour stated that he accepted the respondent's counsel's statement on instructions that his client accepted that he was getting too old to spend time in prisons, which he perceived to be less agreeable than when he was younger. After referring to the respondent's pleas of guilty and co-operation in assigning the stolen property to the thefts, his Honour said that he had deliberately chosen to look for a global sentence to avoid passing a crushing sentence and then to fix a minimum sentence which allowed scope for reformation. Such possibility of reformation existed, he opined, "by reason of the matters put to me by [counsel] as to the prisoner's present aversion to imprisonment and by reason that he has not been imprisoned for the last ten years".

46. On 7 April 2004 the judge who had sentenced the respondent on 17 December, 2003, sentenced Fratino, who had pleaded guilty to 19 counts on one presentment and 20 counts on another, together with two summary charges, to a total effective sentence of six years' imprisonment with a non-parole period of four years. The first presentment covered Fratino's criminal activities during the period covered by the presentment against the present respondent, but contained more and different counts, including some for offences of a kind not the subject of the presentment against the respondent. Count 2, however, was the equivalent of Count 4 in the instant presentment. On it his Honour sentenced Fratino to imprisonment for 15 months and he made it the base count for his cumulation direction. In the course of sentencing Fratino his Honour referred to his sentencing of the respondent and said, "Given the quite different counts on which I sentenced him, principles of parity cannot really be applied to the sentence I am about to impose".

49. 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.

52. Secondly, it was said that, although the sentencing judge acknowledged the relevance of general deterrence, he did not, in fact, give it any or any sufficient weight. Having regard to the extent of the respondent's prior criminal history, the nature of the offending itself and the fact that the offences were committed while on parole, the sentences failed altogether to have any general deterrence component. Thirdly, the same opening submission was made about specific deterrence. The respondent was demonstrably a recidivist. A sentence less onerous than that which he had received in 1997 for conduct, in part, not dissimilar to the present would not go to deterring him in the future. Fourthly, the three matters specifically identified by the sentencing judge as going to mitigation were given too much weight. Thus, as regards the plead of guilty, the Crown case was overwhelming, the respondent being found in possession of stolen goods, being observed in stolen cars and being recorded on intercepts. Such delay as there was was really the respondent's own doing: the Crown was entitled to seek to have the respondent plead to what appropriately represented the nature of his criminality (and he did not agree to do that until about September, 2003). The fact that the respondent might, at some future time, have the hope of obtaining employment and his concern for the welfare of his youngest son were, it was said, meagre matters going to rehabilitation. Fifthly, it was said that the respondent's criminal history spoke for itself but received insufficient weight.

55. 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.

58. In his oral submissions Mr. Tehan began by referring to the respondent's background and saying that he was a product of his environment, who had wasted his life and passed in and out of the "revolving door" of prison. His counsel had asked for a minimum term of 18 months and that is what he had received. That sentence was light, but the court should only allow an appeal in a rare and exceptional case, not simply where the sentence was light or even very light. The sentencing judge might have seen some glimmer of rehabilitation in the fact that the respondent had not offended in the 2½ years since his arrest, in his family ties and in his obtaining counselling in the last 8 months. In addition the judge was bound to take account of the respondent's possible liability to the Parole Board. Mr. Tehan referred to the Matchworks counsellor's belief that the respondent had no intention of re-offending in the future and said that the judge was giving him another chance and that there was no limit to the mercy that might be accorded to an offender. Even if the court considered the sentence manifestly inadequate, it should dismiss the appeal in the exercise of its discretion because of the lesser sentence passed on Fratino in more serious circumstances; the delay of 2½ years and the absence of further offending; and the so-called double jeopardy principle.

61. The principles applying to Crown appeals are well known. Some have been mentioned already. It is necessary to state here only that they may be allowed where a sentence reveals such manifest inadequacy as to constitute error of principle or to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: R. v. Clarke[5].

64. Undoubtedly the individual sentences, the cumulation directions (or absence of them) and the non-parole period were very lenient, for the activities relating to motor vehicles in which the respondent took part were sophisticated and commercially oriented and his antecedent criminal history shows that he manifested in his commission of the instant offences a continuing attitude of disobedience of the law, so that retribution, deterrence and protection of society all indicate that a more severe penalty is warranted than would otherwise be the case[6]. The question, however, is whether any component of the sentence is manifestly inadequate. Now, sentencing is par excellence a discretionary exercise, so that there is not one, single, correct sentence but rather a range of sentences open to the sentencing judge in the exercise of a sound discretionary judgment. An appellate court must recognise the considerable discretion which a sentencing judge has. It is only if the sentence imposed is outside that range that it is manifestly inadequate or, at the other end, manifestly excessive. Whether a sentence is manifestly inadequate or manifestly excessive is a conclusion not admitting of much argument.

67. 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.

70. The other principal basis on which the respondent sought to uphold the non-parole period was that his Honour might have seen a glimmer of rehabilitation and, as an act of leniency, given the respondent another, or perhaps his first, chance. The difficulty about this argument is that substantially the same argument was put, successfully, to Judge Kelly, and yet the respondent offended in a similar way and with the same co-offender within a year of his release from prison and while he was still on parole in respect of Judge Kelly's sentence. Whilst there are occasions, to be discerned through perceptiveness and experience, for the exercise of leniency, and whilst this may have been such an occasion, the leniency extended, if such it was, went, in my opinion, well beyond what the circumstances could justify. The offending was serious. The respondent was a recidivist. Whilst the absence of offending in the last 2½ years before sentencing was, for the respondent, significant, the other items of evidence relied on to indicate rehabilitation, achieved or prospective, were not strong. It must be remembered that the non-parole period has a penal element. This case called for specific deterrence as well as general deterrence.

73. For these reasons, I consider that the non-parole period fixed reveals such manifest inadequacy in sentencing standards as to constitute error in principle and is so disproportionate to the seriousness of the crimes as to shock the public conscience (if the public were aware of the sentence). I would not, however, uphold the appeal

in relation to the other elements of the sentence. With some hesitation, I am, having regard to the discretion residing in the sentencing judge and his entitlement to show some mercy in the circumstances that have been discussed, not persuaded that any individual sentence or any direction (or absence of direction) for cumulation was manifestly inadequate. In any event, I would not, as a matter of discretion, interfere with those parts of the sentence, in view not only of considerations I have just been discussing but also of the sentence (especially that on the conspiracy count) imposed by the same judge on Fratino for more serious and more extensive offending. In saying that I do not overlook that on Crown appeals considerations of parity are much less important[14] and I recognise also that the sentence on the conspiracy count may have been influenced by considerations of totality.

77. I would, accordingly, allow the appeal in part, set aside the non-parole period fixed and in its place and in light of views I have expressed earlier fix a non-parole period of 3 years. I would make a fresh declaration as to pre-sentence detention. I would otherwise affirm the orders made by his Honour.

82. I agree that this appeal should be allowed and the respondent re-sentenced as proposed by Batt, J.A. I do so for the reasons advanced by him in his judgment.

[1] Which is defined in s.88(1) of the Crimes Act 1958 as including assisting in the retention of stolen goods.

[2] (2003) 77ALJR 872 at 878, para.[32].

[3] [2001] VSCA 143 at para [22].

[4] Everett v. The Queen (1994) 181 C.L.R.295 at 299.

[5] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[6] Veen v. The Queen [No. 2] [1988] HCA 14; (1988) 164 C.L.R. 465 at 477; Weininger v. The Queen at 878, para.[32].

[8] [2001] VSCA 36

[9] [2001] VSCA 143.

[10] It is to be noted that s.197(2) and (5) of the Community Welfare Services Act 1970, the legislation in force in the other case cited for the respondent, R. v. Masterson (unreported, Court of Criminal Appeal, 31 August 1982) at pp.5-6, was different not only from sub-s.(5), but also from sub-s.(7)(b), of s.77 of the Corrections Act.

[13] [2003] VSCA 156 at para.[28, fn.27].

[14] See, for instance, Director of Public Prosecutions v. Bulfin [1998] 4 V.R. 114 at 136-139 and 141.