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

Minotto v The Queen [2010] VSCA 310 (29 November 2010)

R v Minotto (Unreported, County Court of Victoria, Judge Wilmoth, 24 April 2009)

1 On 17 April 2009, the appellant pleaded guilty before the County Court at Melbourne, on Presentment X00887204, to five counts of burglary, seven counts of theft, five counts of attempted theft, one count of attempted burglary and one count of obtaining property by deception; and, on Presentment X01679758, to one count of burglary, one count of theft, one count of criminal damage and one count of attempted theft. He also admitted 126 previous convictions from seven court appearances.

2 Following a plea in mitigation of penalty, on 24 April 2009, he was sentenced as follows:

Entered premises of former employer with intent to steal

Rolled-up count entered 3 different areas of premises

Stole metal valued at $31,000, later sold for $13,000

Tried to break into a truck at premises causing damage

Stole truck, trailer and 10 boxes of goods valued at

Entered premises in Tullamarine by forcing lock causing damage

Planned to siphon petrol from vehicle parked at premises

Total Sentence - 2 years 3 months' imprisonment (to be served concurrently with Presentment X00887204)

Total Effective Sentence - 5 years 2 months' imprisonment

3 The appellant now appeals with leave against the sentence on five grounds of appeal.

4 The circumstances of the offending appear from the judge's sentencing remarks. From February 2003 until October 2006 the appellant was employed by a bakery company at leased premises at 183 Fitzgerald Road, Laverton North. When he left that organization, he kept an access card which opened the gate to the premises.

5 On 8 November 2006, he used the card to gain access to the premises and stole from within a motorcycle worth $22,000 and several toolboxes with contents valued at $15,000. The motorcycle was later found in the possession of a man who had purchased it from the appellant and the police also recovered some of the tools. Those are the facts which comprised Counts 1, 2 and 3 on the first presentment.

6 On 26 November 2006, the appellant again entered the premises and forced entry into three areas within. Count 4 was a rolled-up count covering those three incidents of burglary. Count 5 was a count of theft of 12 sacks of silicon metal valued at $31,000, which the appellant later arranged to be sold for just over $13,000. Count 6 was a count of theft of a truck valued at $80,000, which was later recovered by police. Counts 7 to 11 were all counts of attempted theft. The appellant tried to break into five trucks parked in an open area on the site causing damage to the doors and in some cases also to the ignition. He was later challenged by a sub-contractor who saw him at the site and subsequently identified him from a photo-board.

7 On 24 December 2006, the appellant again entered the premises and stole two welders. Those are the facts which comprise Count 12. The offences the subject of Counts 13, 14 and 15 were committed on 5 January 2007, when the appellant again entered the premises and forced entry to a storage shed and from there into a second storage area. From there he stole ten boxes of goods which he loaded onto a Mack truck and trailer that he stole from the rear car park and drove away from the premises. The truck and trailer were valued at $240,000 and were later found by police.

8 The next day, 6 January 2007, the appellant gained entry to the staff room at the premises and stole nine sets of keys. Those are the facts which comprised Count 16. He and his co-offender then stole a Kenilworth truck valued at $120,000, which was later found by police. Those are the facts which comprised Count 17. He was also observed trying to force his way into a storage shed. Those are the facts which comprised Count 18. Count 19 was a count of obtaining property by deception constituted by the appellant going to the Epping Cash Converters and receiving $160 for tools which he falsely claimed were his. He was arrested on 27 March 2007 and the access card and various tools engraved with the initials of others were found inside his car.

9 The four offences the subject of the second presentment were all committed on 13 February 2007. The appellant and his co-offender gained entry to the premises of Best Multiple Food Company at Tullamarine by forcing the lock of an external door and thereby caused extensive damage. Those are the facts which comprised Count 1. The appellant stole $150 cash from the office. Those are the facts which comprised Count 2. In the process the appellant caused damage to the safe, valued at $881. Those are the facts which comprised Count 3. He was arrested at the scene and he told police that he had planned to siphon petrol from a van parked at the premises. Those are the facts which comprised Count 4.

10 The appellant was 36 at the time of sentencing and had been addicted to amphetamines and dependent on alcohol for years. He left school at Year 10 and started an apprenticeship as a panel beater, but failed to complete it. Thereafter he worked as a labourer for some time with aspirations of one day becoming a mechanic.

11 His offending began at age 28 when he was convicted of burglary and theft and sentenced to eight months' imprisonment which was wholly suspended. That was followed by a quick succession of similar offences over the next few years and also some driving offences and one of possessing amphetamines. He was sentenced to various terms of imprisonment, fines and community based orders, not all of which were successfully completed, and on breach he was sentenced to prison and in one case a suspended sentence of imprisonment was restored.

12 During his last term of imprisonment, however, and following his release on parole in June 2008, he made considerable progress towards freeing himself of drug addiction and alcohol dependence and until the subject offences he had not reoffended.

13 The principal ground of appeal, Ground 5, is that the sentence is manifestly excessive and, in support of that contention, counsel for the appellant submitted as Grounds 1 to 4, although in effect as particulars of manifest excessiveness, that the judge gave insufficient weight to the principle of totality, the effects of delay, the appellant's plea of guilty, his demonstrated remorse, and the extent to which the appellant had achieved rehabilitation; and that the judge gave excessive weight to general and specific deterrence.

14 As to totality, counsel for the appellant noted that the offences the subject of the first presentment (No X00887204) were committed between 8 November 2006 and 6 January 2007, and the offences the subject of the second presentment (No X01679758) were committed on 13 February 2007, and therefore, counsel said, were closely related in time and nature to offences for which the appellant was sentenced[1] in July 2007 to a term of 18 months' imprisonment with a non-parole period of 12 months, and to further offences for which he was sentenced[2] on 17 December 2007 to a term of 30 months' imprisonment with a non-parole period of 10 months. Those terms of imprisonment were served concurrently and the appellant was granted parole and released on parole on 27 June 2008, some nine months before he stood to be sentenced for the subject offences.

15 Counsel argued that, because all of the offences were so closely related in time, the judge was bound by the principle of totality expounded in Mill v The Queen[3] to approach the sentencing task on the basis of what would likely have been the effective head sentence if the appellant had stood to be sentenced for all of the offences at one time, and thus to impose a head sentence for the subject offences which, when taken in conjunction with time already served, provided just punishment for the totality of criminal conduct.[4]

16 In counsel's submission, it was apparent that the judge had not taken the totality principle into account, or at least had not given it sufficient weight in light of the measures which the appellant had taken and the success and progress he had achieved towards rehabilitation and in re-ordering his life and conduct. Counsel contended that the outcome was not 'just and appropriate'[5] but rather a 'crushing' sentence which denied the appellant a proper measure of hope and encouragement.

17 In our view, those submissions cannot be accepted in the broad terms in which they were stated. To begin with, it is an exaggeration to describe the offending for which the appellant was sentenced in December 2007[6] as related in type to the subject offending. It involved distinct and disparate criminality.

18 Secondly, it is clear that the judge did have regard totality and the appellant's previous sentences of imprisonment. Totality was a live issue on the plea, in that both parties made submissions on the point, and her Honour expressly referred in her sentencing remarks to the appellant's previous sentences of imprisonment and time already served, and the need to allow for it.

19 Thirdly, as was submitted by counsel for the Crown, the subject offences were serious instances of property offences, committed over a period of four months, using knowledge gained from previous employment, and involving property of significant value. They affected multiple victims, who suffered significant loss and inconvenience, and they were aggravated in some instances by the appellant returning several times to the same victim's premises. The appellant also had an appalling criminal history, including highly relevant convictions for property offences.

20 Given, the nature and gravity of the offending, and the appellant's antecedents, it appears to us that the judge did moderate some of the individual

sentences and orders for cumulation substantially, in order to give effect to the principle of totality.

21 As to delay, counsel for the appellant contended that the judge had given insufficient weight to what counsel described as the inordinate delay between the commission of the offences[7] and the appellant being charged[8] and to the fact that, in the meantime, the appellant was sentenced in relation to other offences in July 2007 and on 17 December 2007.

22 It was important to keep in mind, too, in counsel's submission, that the delay was in no way the fault of the appellant, since he was arrested at the scene of the crime and interviewed in relation to the second presentment offences on 13 February 2007 and in relation to the first presentment offences on 27 March 2007 (when items which became critical evidence in relation to the first presentment were located in his vehicle and seized), and again in connection with the first presentment offences on 18 May 2007, while in custody in Metropolitan Remand Centre, at which time a forensic procedure was undertaken, and the analysis of biological materials and DNA samples was complete by 7 August 2007. He was not charged, however, for almost another year, by which time the Adult Parole Board had resolved that he should be released on bail on 27 June 2008.

23 Counsel also stressed the progress which the appellant had made towards rehabilitation in prison and after his release on parole. He pointed to the fact that the appellant had been subjected to frequent urinalysis while in prison and following his release on parole and that the results demonstrated that he had achieved and maintained abstinence from illicit substances throughout that time. The appellant had also gone through a period of intensive supervision, during which he completed

a programme of counseling and treatment for amphetamine addiction with Moreland Hall, and participated in and was supported by a 12-step programme through Narcotics Anonymous and the Melbourne Alcohol Recovery Centre, to which he was referred following his release on parole. In view of that progress, and the anxiety which counsel suggested would have been caused by the delay, counsel argued that the judge had given too little weight to the delay, its effects on the appellant and his progress towards rehabilitation in that time.[9]

24 We are not persuaded that the delay was inordinate. The time between the commission of the offences and sentencing was only just over two years, during which time the police investigated the crimes and charged the appellant in March and May 2008, and there was then a committal hearing in 19 March 2009 in relation to the offences the subject of Presentment X00887204 and a committal mention in relation to the offences the subject of Presentment X01679758. Further, as counsel for the Crown pointed out, the appellant did anything but assist the process. He made a 'no comment' record of interview in respect of the Presentment X00887204 offences. At the time of sentence on 17 December 2007, he was well aware of the outstanding charges but elected not to implicate himself or assist investigating police with their inquiries. Had he chosen to do so, it would have been open to have all outstanding matters dealt with at the hearing on 17 December 2007.

25 In any event, it appears to us from the judge's sentencing remarks that her Honour gave close attention to such delay as there had been and to the appellant's progress towards rehabilitation in the meantime.

26 Ground 3 was argued in effect in augmentation of Ground 2. Counsel submitted that the judge had failed to give sufficient weight to the appellant's

26 progress towards rehabilitation in prison and after his release on parole in June 2008.

27 That does not appear to us to take the matter any further. It is apparent from the judge's sentencing remarks that her Honour took into account the appellant's efforts towards rehabilitation, including evidence given on the plea by his sister and by a drug and alcohol counselor as to his progress and their belief in the probability of his success. But, as was submitted for the Crown, it was necessary for the judge to balance the appellant's prospects of rehabilitation against the important sentencing purposes of general deterrence, specific deterrence and protection of the community, which in this case, in our view, loomed large.

28 Ground 4 was abandoned at the outset of oral argument.

29 In the result, we are unable to discern any error in the judge's sentencing synthesis. Her sentencing remarks present to us as a thorough, careful analysis of all relevant sentencing considerations, including examination of the requirements of totality, the effects of delay, the appellant's remorse and progress towards rehabilitation, and it appears to us that the sentence imposed is the result of a consequently appropriate balance of general and specific deterrence against the need to avoid the imposition of a crushing sentence.

30 Finally, however, it became apparent in the course of argument that an error had been made in recording on the Record of Orders made in the Criminal Jurisdiction (Case ID: CR-09-00360) the orders made by the judge in relation to the sentence imposed on the counts the subject of Presentment X01679758. For reasons which do not appear, there was not included in the record that the non-parole period set in relation to the total sentence imposed on those counts was the same two year period as was set as the non-parole period for the total sentence imposed on the counts the subject of Presentment X00887204.

31 In order that the error may be corrected, we shall allow the appeal and direct that an appropriate amendment be made to the record.

32 Accordingly, we allow the appeal in part. We order that the Record of Orders made in the Criminal Jurisdiction (Case ID: CR-09-00360) be amended by adding thereto that 'the minimum term to be served before being eligible for parole is 2 year/s imprisonment'. Otherwise we confirm the orders made below.

[1] By the Magistrates' Court at Broadmeadows.

[4] See too Regina v The Queen [2004] NTCCA 9; (2004) 149 A Crim R 583, 590 [31] (Martin CJ).

[5] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 341 (Kirby J).

[6] Trafficking in a drug of dependence.

[7] They having been committed between November 2006 and February 2007.

[8] With the offences the subject of the second presentment.

Minotto v The Queen [2010] VSCA 310

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Judgment (60 paragraphs)

Minotto v The Queen [2010] VSCA 310 (29 November 2010)

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Cases Cited (2)