Kulafi v The Queen; Nguyen v The Queen [2021] VSCA 369

1 The applicants ('AK' and 'QVN' respectively)[1] were co-offenders in the burglary of a car dealership and the theft of multiple vehicles. AK attended the premises on 13 occasions over a 25-hour period, stealing 14 vehicles and one roof rack. QVN attended on five occasions in the same period. He participated in the theft of nine vehicles and the roof rack.

2 AK received a total effective sentence of 4 years and 8 months' imprisonment, with a non-parole period of 3 years. QVN received a total effective sentence of 3 years and 4 months, with a non-parole period of 2 years.

3 Each applicant now seeks leave to appeal against sentence. There is no complaint about the individual sentences but each applicant contends that the total effective sentence and the non-parole period are manifestly excessive. In support of that contention, each applicant argues that the sentence imposed on him breached the principle of totality, and that the judge overstated the seriousness of the offending. QVN has separate grounds of specific error regarding totality and the judge's characterisation of the offending.

4 For reasons which follow, we would uphold the manifest excess ground in each application. As will appear, the applicants' arguments directed at the judge's assessment of offence seriousness and at the application of totality were central in making good the manifest excess ground. It is therefore unnecessary to decide QVN's specific error grounds.

5 In each application, there will be a grant of leave to appeal, the appeal will be allowed and the sentence imposed set aside. In the case of AK, we will resentence him to an aggregate sentence of 3 years and 4 months' imprisonment, with a non-parole period of 2 years and 6 months. In the case of QVN, we will resentence him to an aggregate sentence of 2 years and 6 months' imprisonment, with a non-parole period of 18 months.

6 The charges against AK and QVN relate to their attendance at TOYLEX R Us, a car wrecker and parts dealership in Derrimut between 28 and 29 September 2019. TOYLEX R Us are authorised Toyota and Lexus wreckers. They purchase damaged vehicles from salvage auctions and remove parts suitable for Toyota and Lexus motor cars before selling them to customers. They also provide mechanical repairs, servicing, panel repairs, and engineering work for any Toyota or Lexus vehicle. At the time of the offending there were about 200 cars in varying conditions stored in and outside of the warehouse of the business.

7 At about 12:00 pm on Friday, 27 September 2019, which was the AFL Grand Final public holiday, the business manager of TOYLEX R Us went to the warehouse to ensure that everything was fine. He remained there for about 15 minutes before ensuring the premises was secure and then leaving. The vast majority of the offending was captured on CCTV footage.

8 At about 6:18 am the following morning, Saturday, 28 September 2019, AK and QVN drove up to a rear gate of the premises. AK was driving. He used bolt cutters to cut the chain securing the gate before going back to the car. QVN then got out of the car and opened the gate, allowing AK to drive in. QVN closed the gate and then came back to the car. AK drove up a dirt road and parked the car. Both offenders got out and, after a short while, they found a large black metal roof rack which AK carried to the utility vehicle that he was driving. He then left the premises. Those actions underlie the charge of theft of a black metal roof rack.

9 AK and QVN returned to the property at about 10:52 am, driving in through the now open gate. They were both at the premises for some time and were seen on CCTV footage inspecting several cars parked in the exterior area. Soon after, AK got into the driver's seat of a 2008 Lexus sedan that he had seen on his first attendance. QVN got into the passenger seat and the two of them drove the car a short distance before AK drove it out of the premises. Those actions underlie the charge of theft of the Lexus valued at $20,000.

10 At about 8:34 pm that night, the two offenders returned to the premises in the utility, with an unidentified female. The three of them inspected a number of cars before AK successfully used a tyre iron to jemmy open an access door to the warehouse. He then opened the roller door and walked into the warehouse. Those actions underlie the charge of burglary.

11 Once inside, AK went to a Toyota Landcruiser parked in the centre of the warehouse. He inspected the engine with a flashlight and opened the roller door. He then went back to the Landcruiser, which caused the alarm to activate. He then managed to turn the alarm off. Then he went to a red 2008 Can-Am Outlander quad bike which he started and drove off the property. That offending underlies the charge of theft of the quad bike valued at $4,000.

12 The other offenders left immediately afterwards in AK's utility. About four hours later, AK came back with another unidentified man. This time AK was driving the stolen blue Lexus. The two men went into the warehouse. AK inspected and tampered with several vehicles before the unidentified man drove a 2017 Toyota Camry sedan out of the warehouse. AK drove a 2015 Toyota Camry sedan from the warehouse to the exterior park. He then went back to the warehouse and drove a 2017 Lexus coupe into the exterior carpark. Both the 2017 Toyota and the 2017 Lexus were driven off the property. Those actions underlie the charges of theft of the Camry sedan valued at $15,000 and theft of the Lexus coupe valued at $35,000.

13 AK and the unidentified man came back to the premises another six times between 12:28 am and 2:19 am, and a further two cars were stolen, being a 2012 Toyota coupe valued at $20,000 and a 2012 Toyota Landcruiser valued at $60,000. This offending underlies two charges of theft.

14 AK returned to the premises driving the stolen Landcruiser, went into the warehouse and drove a number of vehicles from inside to the outside carpark in readiness for stealing. These cars included a 2016 Fiat Ducato van. Specific attention was given to a Lexus coupe parked inside the warehouse, as AK was seemingly unable to start it. At about 1:47 am he drove the 2016 Fiat Ducato van off the premises. That offending underlies the charge of theft of the Fiat van valued at $12,000.

15 At 5:50 am on 29 September, AK returned to the premises, this time in the stolen 2017 Toyota Camry. Using a blue shirt wrapped around his head in an attempt to conceal his identity, he again came into the warehouse through the open roller door. Other people arrived at the premises with AK, including QVN, the unidentified male referred to earlier and the unidentified female referred to earlier.

16 After entering the warehouse, the four of them started and moved several cars before a 2015 Toyota Camry sedan, a 2009 Lexus coupe, a 2013 Toyota coupe, and a 2016 Toyota Kluger wagon were stolen and driven out of the premises by the offenders. AK was driving the 2016 Toyota Kluger. These actions underlie the charges of theft of the 2015 Toyota sedan valued at $15,000, the theft of the Lexus coupe valued at $20,000, the theft of the 2013 Toyota coupe valued at $15,000 and the theft of the 2016 Toyota Kluger wagon valued at $35,000.

17 After those cars were driven out, AK, QVN and the unidentified male returned almost immediately to the premises in the stolen 2015 Toyota Camry. AK parked the stolen car near the warehouse. He then went in and stole a 2014 Lexus sedan, and the unidentified male stole a 2018 Toyota Camry sedan. Those actions underlie the charges of theft of the Toyota Camry valued at $25,000 and the theft of the 2014 Lexus sedan, valued at $35,000.

18 At 8:10 am AK was driven to the premises again by an unknown person, before going into the warehouse and using a car battery and jumper cables to try to start a Landcruiser. He was unsuccessful in doing this. He then stole a 2011 Toyota HiLux which he drove away from the premises at 8:14 am. That action underlies the charge of theft of a Toyota HiLux, valued at $30,000.

19 In total AK entered the warehouse to steal cars (this underlies the charge of burglary) on 11 occasions and stole 14 vehicles, including the quad bike. The estimated value of those 14 vehicles was $341,000. QVN entered the warehouse (burglary) to steal cars on five occasions and stole nine vehicles, the estimated value of which was $180,000**.**

20 At about 12:00 pm on 29 September, the business manager attended the premises and discovered the burglary and theft. He contacted police, who attended the scene three hours later. Crime Scene officers located a number of fingerprints and a palm print on the Toyota Landcruiser which AK had unsuccessfully tried to start. It was confirmed that that the prints were his. Police were shown a portion of the CCTV footage.

21 Other TOYLEX R Us employees who were present at the address on 30 September told police they had found a black torch, a smartphone and a red glove. Investigation subsequently revealed that the utility in which AK originally attended was registered to his father. This was seized by police on 2 October 2019. QVN's DNA was later located on a straw found in a McDonald's cup in the front seat of the vehicle.

22 QVN was arrested on the morning of 2 October 2019 while sitting in the stolen 2008 Lexus. Once he was in custody, police saw a text message on his phone from a contact, left at 6:16 am that morning. The message read, 'If you see [AK] can you please tell him that there is a set of keys in my ute left yesterday please'. That evening, police attended at AK's home with a search warrant, and saw the stolen 2017 Lexus coupe parked directly opposite that house. AK was found inside the house and arrested. Police found on him a set of Toyota car keys belonging to the stolen Toyota Landcruiser. Police found other items connected with the burglary and theft in AK's house and he was taken to the Sunshine Police Station.

23 In a record of interview, AK denied responsibility for the thefts. He denied ever having attended the premises. His fingerprints were, again, located on the Toyota Landcruiser he had tried to steal and his DNA was located in a glove which was seized from one of the stolen cars. QVN likewise denied any involvement. On the execution of a search warrant of QVN's address, however, police found clothing which matched that worn by one of the participants in the burglary.

24 AK was remanded in custody after his arrest on 2 October 2019, but was granted bail on 18 November 2019. He was then remanded on other matters and subsequently sentenced to a term of imprisonment. His bail was formally revoked. He was dealt with for other dishonesty offences. He was ultimately sentenced in that time by the Magistrates' Court. His sentence expired on 14 June 2020 and he remained in custody.

25 QVN was remanded in custody but was granted bail on 28 October 2019. He was subsequently arrested for a burglary which occurred on 10 December 2019. He was sentenced to a term of imprisonment for that offence, which he completed on 6 June 2020.

26 AK pleaded guilty to one charge of burglary and 15 charges of theft, and was sentenced as set out below:

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

6AAA Statement: 6 years' imprisonment with non-parole period of 4 years' imprisonment.

Other relevant orders: Disposal order and licence cancellation and disqualification for 2 years (on charges 3 to 16).

27 QVN pleaded guilty to one charge of burglary, 10 charges of theft, one of handling stolen goods and one of possess a drug of dependence. He was sentenced as follows:

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

6AAA Statement: 5 years and 6 months' imprisonment with non-parole period of 3 years and 6 months' imprisonment.

Other relevant orders: Disposal order and licence cancellation and disqualification for 2 years on each of charges 3 to 11.

28 QVN was sentenced in November 2020,[8] AK in February 2021.[9] In sentencing QVN, the judge explained that she did not view a combination sentence - a term of imprisonment combined with a community correction order - as a 'sufficiently stern response' to his offending. She continued:

This was major serious commercial offending, it was repeated over and over and over, it was highly organised, it resulted in the loss of a fleet of cars. The offending was simply too serious for me to consider dealing with you in any way other than by a term of imprisonment.[10]

29 QVN's first ground of appeal contends that her Honour here mischaracterised the offending and, as a result, overstated its seriousness. According to the written case, this was not 'highly organised, commercial offending. Rather, the offending is better characterised as opportunistic.' Further, it is said:

It was only 'major' and 'commercial' because of the total value of the vehicles. There was no factual basis to make the finding that it was 'highly organised'.

30 In oral argument, counsel for QVN drew attention to the prosecution's concession on the plea that the offending was 'not overly sophisticated'. As to the prosecution's contention that it was nevertheless 'planned and organised', counsel pointed out that the offenders had worn no disguise and made virtually no attempt to conceal their identity, resulting in them being easily identifiable on CCTV. Nor were any precautions taken to avoid leaving behind traces of DNA, which were subsequently detected.

31 Counsel for AK submitted that the offending had all the appearance of being 'impulsive' and 'inept'. The use of bolt cutters to break the fence and a crowbar to gain entry to the warehouse was hardly to be regarded as sophisticated, it was said. The nature of the offending was entirely consistent, counsel submitted, with the offenders' state of drug-induced intoxication.

32 There was discussion in the course of argument about what the judge had meant by referring to this as 'commercial offending'. It was suggested that this was a reference either to the fact that the burglary and thefts took place at commercial premises or to the fact that arrangements were evidently in place for the 'commercial' disposal of the stolen vehicles for cash. As to the latter possibility, counsel for AK submitted that the disposal of expensive vehicles for only $1000 each was not indicative of a 'commercial' operation.

33 The submission for the respondent was that the stealing of multiple motor vehicles for on-sale was to be distinguished from, for example, the stealing of a car in order to get to a particular destination or for the purposes of a joyride. The judge was correct to describe this as 'major serious offending', given the number of vehicles stolen and the persistence of the offenders in returning time and time again to steal further vehicles.

34 As noted earlier, it is unnecessary to deal with QVN's specific error ground. As was pointed out in Smith v The Queen:

[A] complaint that the sentencing judge erred in the assessment of the (relative) seriousness of the offence before the court will ordinarily not be a ground of specific error. A possible exception would be a case where the judge's assessment of offence seriousness revealed such a significant misapprehension of the nature and circumstances of the offending as to constitute a finding not reasonably open on the evidence.[11]

35 With respect to her Honour, we consider that the seriousness of the offending was significantly overstated. While the course of events extended over 25 hours, and involved repeated visits to the warehouse for the purpose of stealing further vehicles, it was in effect one continuous operation carried out in one place. And it seemed to have been both poorly planned and haphazardly carried out. Moreover, in our respectful view, the fact that these were thefts from commercial premises rather than from private or domestic premises did not - of itself - make the offending more serious.

36 We accept the submission for the respective applicants that the offending stands in stark contrast to that dealt with in the cases on which they relied in support of the manifest excess grounds. For example, in Nguyen v The Queen,[12] the offender (and two co-offenders) had committed a series of burglaries and thefts at six different commercial premises, offending on seven different occasions over the course of a month. This Court concluded that the burglary and theft offences

were organised and systematic. The use of equipment, overalls and headlamps demonstrated a high degree of preparation and premeditation for the offending. The repetition of the burglary and theft charges on the [various] Australia Post facilities reveals that the offending was not impulsive.[13]

37 In that case, the offender had received an aggregate sentence of 4 years' imprisonment for all of those offences. On appeal, the sentence was reduced to 2 years and 6 months' imprisonment because of the need to recognise the significant assistance which the offender had provided to investigators.

38 Again, in R v Berry,[14] the offender had taken part in two separate series of burglaries and thefts. The first involved nine burglaries and 13 thefts, as part of a gang operation in Melbourne and regional Victoria which targeted supermarkets, service stations and convenience stores for tobacco products. The offending was found to have been highly planned and carried out with 'almost military precision'.[15] For all of those different offences, he received an aggregate sentence of 4 years' imprisonment. The second series comprised 'smash and grab' offences in which phones were stolen and then sold for cash. The offender pleaded guilty to six burglaries and six thefts, receiving an aggregate sentence of 2 years' imprisonment. The total effective sentence of 6 years' imprisonment was unchanged on the appeal, although the non-parole period was slightly reduced.

39 Reference should also be made to Director of Public Prosecutions v Bowd.[16] In that case, the offender had to be sentenced for 43 separate burglaries and attempted burglaries committed over an 8 month period. All of the offending was committed against commercial premises. At first instance, he was sentenced to an aggregate sentence of 55 months' imprisonment, which was increased on appeal to an aggregate sentence of 7 years' imprisonment.

Having reviewed these authorities and considered the competing submissions, we have come to the clear view that the sentence for the dishonesty offending was manifestly inadequate. This was, in our view, very serious offending, planned and executed in a calculating and purposeful manner. In a number of instances, the value of the goods stolen was very substantial and, as noted earlier, significant damage was caused by some of the forced entries. DB's serious relevant prior convictions, and the fact that he was on bail for burglary and theft when he committed all of the remaining offences, meant that specific deterrence and community protection were very important sentencing considerations.

[I]in most instances, a period of days or weeks elapsed between the individual burglaries. It is clear, therefore, that DB had ample time to pause and reflect on his offending conduct. Instead of desisting, however, he made a deliberate decision, each time, to persist with what he well knew was serious illegal activity. In this sense, each new burglary and associated theft represented not only distinct criminality but distinct culpability.[17]

41 As the Court noted in Bowd, the question of totality always presents a sentencing judge with a particular challenge in cases involving multiple dishonesty offences. It is to that question that we now turn.

42 The submission for AK drew attention to the structure of the sentences imposed on each of the applicants, contending that an overly 'mechanistic' approach had been adopted. According to the submission, this had resulted in a sentence which breached the principle of totality, that is, it was disproportionate to the aggregate criminality involved in the burglary and thefts which he committed.

43 The particular feature of the sentence structure identified was the uniformity of the sentences imposed, and the degree of cumulation ordered, on the successive theft charges. As can be seen from the sentencing tables set out earlier, her Honour sentenced each of the applicants to 9 months' imprisonment on each theft charge and, in each instance, ordered cumulation of 3 months of the 9 month sentence.

44 The result of adopting this 'arithmetical' approach, counsel submitted, was that AK received a disproportionately high sentence simply because of the number of vehicles he had stolen. It resulted, moreover, in an unjustifiable sentencing disparity between AK and QVN, simply because AK had stolen more cars. This was not, it was said, an appropriate basis for determining the appropriate sentencing differential between them.

45 Counsel for the respondent submitted that the seriousness of the offending was appropriately measured by reference to the number and value of the thefts committed by each offender. As to the disparity between them, counsel drew attention to the judge's unchallenged finding that AK had 'played a greater role in the offending' than QVN. The only relevant distinction between them, counsel submitted, was that AK had entered the premises more often and had stolen a greater number of cars. It was appropriate, therefore, that the sentences be differentiated in the manner which her Honour adopted.

46 In our respectful view, it was not appropriate to view the criminality involved in this offending, and hence the appropriate sentence, as increasing by set increments for each additional car stolen. While the quantum involved will always be relevant in assessing the seriousness of a dishonesty offence, it is only one of the relevant factors and is almost never determinative.[18]

47 In the present case, in our view, the overall criminality was to be assessed by reference to the nature and character of the entire operation over the 24 hour period, rather than measured quantitatively by reference to the number of vehicles. Approaching the sentence in that fashion created the risk of a total sentence which, by comparison with sentences imposed for much more serious offending, was disproportionate to the criminality involved.

48 QVN advanced an additional complaint about totality, relating to the sentence of 6 months' imprisonment which he had served while on remand for this offending. On the plea, defence counsel submitted that the 6 months' imprisonment served in connection with the subsequent offending had to be taken into account when the judge was considering totality. That submission was in accordance with principle. In her reasons, however, the judge did not refer to that submission or make any reference to this aspect of the totality question.

49 As indicated at the outset, the respective submissions of counsel, directed at offence seriousness and totality, illuminated our consideration of the manifest excess grounds. For reasons already given, we have concluded that both the overstatement of the seriousness of the offending and the approach to orders for cumulation resulted in the imposition of manifestly excessive sentences.

50 This case illustrates just how important, and effective, it is for counsel to advance well-developed arguments in support of the manifest excess ground. The burden for the applicant is to persuade the appellate court that the sentence imposed was 'not reasonably open ... if proper weight had been given to all the relevant circumstances of the offending and the offender'.[19] It will therefore be of assistance to the Court, and to the advantage of the appellant, if argument is directed at the particular matters - whether of fact or principle - which, it is said, should persuade the appellate court that the sentence was outside the range.

51 The term 'analytical framework' used by counsel for AK aptly captures the importance of structure in such arguments. Just as reasons for sentence must be transparent,[20] so too must appellate analysis of why a particular sentence is, or is not, outside the range be transparent.

52 This case also illustrates the value of comparable cases. Here, as noted earlier, the applicants were able to point to decisions which were 'instructively different'.[21] As we have indicated, those decisions assisted with the assessment of (relative) offence seriousness and with the consideration of the applicable sentencing range.

53 In our view, an aggregate sentence is appropriate in each of these cases.[22] We take into account, as the judge did, the need for general and specific deterrence, and the significant loss and distress caused to the hardworking owners of the car dealership. We also echo her Honour's concern about the conditional nature of any view about the offenders' prospects for rehabilitation. As her Honour said forcefully to each of the applicants in her sentencing reasons, their ability to avoid reoffending and to lead productive lives will depend on their ability to give up drugs.[23] Her Honour spelt out very clearly for them the choice which each of them faced.

54 For these reasons, we will grant leave to appeal, allow both appeals and resentence. In the case of AK, we will resentence him to an aggregate sentence of 3 years and 4 months' imprisonment, with a non-parole period of 2 years and 6 months. In the case of QVN, we will resentence him to an aggregate sentence of 2 years and 6 months' imprisonment, with a non-parole period of 18 months.

[1] The use of initials for the applicants is for ease of reference only.

[2] Contrary to Crimes Act 1958 s 76.

[3] Contrary to Crimes Act 1958 s 74.

[4] Contrary to Crimes Act 1958 s 76 ('Crimes Act').

[5] Contrary to Crimes Act s 74.

[6] Contrary to Drugs, Poisons and Controlled Substances Act 1918 s 73.

[7] Contrary to Crimes Act s 88.

[8] DPP v Nguyen [2021] VCC 1764 ('Nguyen Reasons')

[9] DPP v Kulafi [2021] VCC 287 ('Kulafi Reasons').

[11] [2020] VSCA 159, [13] (Maxwell P, Kyrou and Weinberg JJA).

[12] [2019] VSCA 249.

[13] Ibid [30] (Niall and Ashley JJA).

[14] [2009] VSCA 219.

[16] [2019] VSCA 246 ('Bowd').

[17] Ibid [27]-[28] (Maxwell P, T Forrest and Weinberg JJA).

[18] R v Samia [2009] VSCA 5, [8] (Nettle JA).

[19] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[20] Markarian v The Queen (2006) 228 CLR 35, 375 [39]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ); R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 439 [62]; [2008] VSCA 84 (Redlich, Kellam JJA and Osborn AJA).

[21] DPP v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660, 671 [49]; [2015] VSCA 266 (Maxwell P) .

[22] Sentencing Act 1991 s 9.

[23] Nguyen Reasons [26]; Kulafi Reasons [37].