R v Ash [2005] VSCA 43

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

12. The appellant pleaded guilty before a judge of the County Court to sixteen counts of handling stolen goods, contrary to s.88(1) of the Crimes Act 1958, to one count of burglary, contrary to s.76(1), and one count of obtaining property by deception, contrary to s.81(1). In addition she pleaded guilty to a count of possession of a drug of dependence, being cannabis, contrary to s. 73 of the Drugs, Poisons and Controlled Substances Act 1981, and to a summary offence of possessing property reasonably suspected of being the proceeds of crime, contrary to s.123(1) of the Confiscation Act 1997.

15. The maximum penalty for handling stolen goods is 15 years' imprisonment, for burglary 10 years' imprisonment and for obtaining property by deception it is also 10 years' imprisonment. The drug offence carried a maximum of five years' imprisonment and possessing property reasonably suspected of being the proceeds of crime carries a maximum sentence of two years' imprisonment.

18. The charges arose out of a police investigation into a series of burglaries which had taken place in the Port Melbourne and Beacon Cove areas. The appellant lived in that area. The burglaries had common features in that the premises were generally burgled by entry through unlocked doors and were usually two-storey townhouses with bedrooms that were upstairs. The homes were usually entered at night, while the occupants were asleep. The property which was the subject of charges against the appellant was stolen from houses over the period 12 January 2002 to 15 May 2002.

21. On 2 April 2002 occupants of a house in Ramsden Street, Clifton Hill disturbed a burglar in the early hours of the morning and gave chase to the fleeing person. They later confronted the appellant and a male and during a scuffle, as a result of which the offenders escaped, a black bag held by the male disgorged property of the householders and also property which identified the appellant. The bag was later identified as having been stolen from another property on 12 January 2002. Count 8 related to the burglary at Ramsden Street.

24. Burglaries continued to occur and on 6 May 2002 the appellant sold stolen property to a Cash Converter business. That constituted count 15, obtaining property by deception. The appellant had identified herself to the shop attendant.

27. On 15 May 2002 the police executed a search warrant at the premises of the appellant and there found a very large quantity of property which had been stolen from premises in the area. Although the appellant was originally charged with offences relating to some twenty-seven properties she was discharged at committal as to a number of the charges; the remaining counts of handling related to property stolen from sixteen properties.

30. The appellant was born in 1964 and admitted to eighty two prior convictions. These arose out of eleven appearances in the Magistrates' Court between November 1984, when she was aged 20 years, until July 2000, at the age of 36 years. The prior convictions included twenty-one convictions for theft, ten for handling stolen property, five for failing to answer bail, five for obtaining property by deception, ten convictions for burglary, convictions for possession of property being the proceeds of crime, and numerous other convictions for offences of dishonesty as well as driving offences. In addition there were numerous drug convictions relating to cannabis, one conviction for trafficking heroin and one for using heroin.

33. As the learned sentencing judge noted in her remarks on sentence, the appellant had been given the widest possible range of sentencing dispositions, ranging from fines to community-based orders, intensive correction orders, wholly suspended sentences and sentences of immediate imprisonment. The most significant prior conviction for present purposes was that imposed on 7 July 2000 when the appellant was convicted on a large number of dishonesty offences including seven counts of burglary, seven of theft and four of handling stolen goods and was sentenced to two years' imprisonment with a non-parole period of eighteen months. The appellant was released on parole on 26 September 2001. The date of the first of the present offences was 12 January 2002, and that offence and some of the other offences were committed while she was still on parole.

36. On 23 July 2004 the learned sentencing judge imposed sentences of four months' imprisonment on each of twelve handling counts, being counts 1, 2, 5, 6, 7, 9 to 14 inclusive and count 18. On the handling count 3, she was sentenced to eighteen months' imprisonment; on the handling count 4, to six months' imprisonment; on both of the handling counts 16 and 17, to twelve months' imprisonment.

39. On the single count of burglary, being count 8, she was sentenced to twelve months' imprisonment. On count 15, obtaining property by deception, she was sentenced to four months' imprisonment. On count 19, possession of a drug of dependence, she was convicted and discharged, and on the summary count of possession of property reasonably suspected of being the proceeds of crime she was sentenced to three months' imprisonment.

42. The judge ordered that four months of the sentence on count 1, six months of the sentence on count 4, 12 months of the sentence on count 8, two months of the sentence on count 15, six months of the sentence on count 16, six months of the sentence on count 17 and two months of the sentence imposed on the summary charge be served cumulatively upon the sentence on count 3 and upon each other. The total effective sentence, therefore, was 56 months, that is, 4 years 8 months' imprisonment, and her Honour ordered that the appellant serve a minimum of three years before being eligible for parole. Her Honour declared a period of 401 days pre-sentence detention.

48. Ground 1 complained that the sentences were manifestly excessive and that the orders for cumulation which were made produced a crushing sentence, having regard to factors such as the appellant's age, history of drug addiction and her attempts to beat her addiction, her relationship with her sons, her early pleas of guilty, delay between arrest and sentencing and the value of the property the subject of the charges.

51. Ground 2 was a complaint of parity, which ground was abandoned on the appeal.

54. Ground 3 complained that the judge erred by effectively sentencing the appellant as if she were a participant in a conspiracy to commit burglary.

57. Ground 4 complained that the individual sentences and orders of cumulation imposed on counts 3, 4, 8, 16 and 17 were disproportionate and inconsistent with the sentences ordered on the other counts.

64. Where multiple offences are being dealt with a sentencing judge is entitled to adopt a broad brush approach[1] but where there are unexplained inconsistencies between the sentences imposed for multiple offences and an unexplained and unusual approach adopted in the cumulation of sentences the possibility of sentencing error is squarely raised.

67. Mr Croucher submitted that the eighteen months' imprisonment imposed on count 3 was four-and-a-half times the length of the sentences imposed on all but three of the other counts of handling (counts 4, 16 and 17); it was three times the length of the sentence imposed on count 4 and fifty percent longer than the sentences imposed on counts 16 and 17. No explanation was given in her Honour's sentencing remarks why sentences of four months' imprisonment were not equally appropriate on those counts as on the other handling counts. Mr Croucher submitted that the unexplained disparity in the sentences reflected that an erroneous sentencing approach had been adopted.

70. In sentencing on multiple offences there is a danger of the judge falling into error. That can occur in many ways, perhaps by failing to register the seriousness of particular offences within the group of offences, by virtue of imposing the same short sentence for each of them but then ordering them to be served cumulatively, or else by imposing a very heavy sentence on one count with all other sentences being concurrent, even though some of them may have justified an order of cumulation[2]. The appropriate approach which ought to be adopted in a case where there are multiple victims would be for the judge to impose a moderate sentence for the most serious offence, lesser sentences for the others and then to make orders as to cumulation on those counts where cumulation seemed appropriate[3]. As Callaway, J.A. held in R. v. Izzard[4] (citations omitted):

"There are at least three reasons why, within the limits of common sense, judges are well advised to moderate and cumulate in appropriate cases. First, moderation is a virtue in itself. Secondly, other victims are not left to feel that the offences committed against them are `meaningless statistics'. Thirdly, a sentence structured that way is less vulnerable on appeal. Attention is focussed on the merits and the discretion is not re-opened simply because the total effective sentence, imposed on one count, was manifestly excessive for the offence the subject of that count considered on its own."

74. Mr Croucher submitted that the sentences imposed in his case displayed some of the problems discussed in Izzard, but the main problem was that the differentiation between the sentences could not be explained at all. For the respondent, Ms Cannon submitted that it could be assumed that her Honour differentiated between counts 3, 4, 16 and 17, on the one hand, and the other handling counts, on the other hand, by virtue of the greater monetary value of the property identified in these counts and also by virtue of the fact that the property stolen had a likely greater personal value to the owners, and consequently the loss of the property would have caused greater inconvenience and distress to the owners in these instances of the offences.

77. Each handling count related to a burglary from a particular house. The value of the property stolen from each house had been stated by the prosecutor during submissions, but Mr Croucher submitted that if her Honour used those valuations in deciding to impose a heavier sentence on the counts in question, then she fell into error because the property listed which was particularised on the handling counts, did not include all of the property stolen, in each instance, in the relevant burglary. I am not persuaded that her Honour made this error.

80. It seems to me that the explanation for the higher sentences on these four handling counts lies not so much in the value of the goods stolen but in the nature of the goods stolen and the added inconvenience thereby imposed on their owners in comparison to other householders.

83. The property identified in count 3 comprised three mobile phones, two laptop computers, a jacket containing wallet and keys, a handbag, a set of car keys, a Landrover manual and a wallet belonging to another person at the property. Mr Croucher agreed that the value of that property was probably greater than that of any of the other handling counts. The sentence on count 3 was treated as the base sentence for the purpose of orders as to cumulation. In choosing that count as the base it may be presumed that the judge considered it the most serious of the offences[5]. Mr Croucher conceded that the property involved in count 3 had a higher value than on any of the other counts of handling but, in my opinion, even if the value of the property had not been significantly greater than for other offences, the quantity and nature of the goods involved in count 3 would have amply justified that count being regarded as the most serious of the handling counts.

86. On count 4 the property found at the appellant's premises included two backpacks, a bag, a mobile phone, a set of house keys (not merely an irritating loss but one no doubt suggestive to the occupant of the possibility of an intended return visit by the burglars), a stethoscope, four wallets and other items. Counts 16 also involved a laptop computer as well as a mobile phone. Among the items to which Count 17 related was a set of reading glasses and personal documents, no doubt highly irritating losses for the owner.

89. As to count 8, the sentence of 12 months' imprisonment was made wholly cumulative but this was the sole count of burglary and it occurred in circumstances which I have earlier described and which her Honour was entitled to take into account. While the Crown could not prove that it was the appellant who entered the house at Ramsden Street she was at least close by and her responsibility was no less than that of her co-offender. She engaged in a struggle and escaped from the owners. In that context the offence justified a significant sentence.

92. Thus, notwithstanding the absence of any explanation from the judge why she imposed heavier sentences on some counts than on others it is quite possible to discern an explanation for those differences. Similarly, the same analysis provides an explanation why her Honour may have chosen these counts upon which to make orders of cumulation. In some cases they represented more serious examples of particular counts and in other instances they represented offending of a different character to the handling counts.

95. The fact that an unexplained structural difference can be discerned as between sentences imposed on multiple counts is not of itself evidence of sentencing error. The question is whether the sentences imposed were within range and the orders as to cumulation can be justified, and if the judge adopts a broad brush approach in achieving that end then differences as between sentences will not matter: see R. v. Albanus[6]. That is not to say that an unexplained disparity in sentences for similar offences and unexplained orders as to cumulation might not be so striking as to suggest that the disconformity thereby disclosed that the process of instinctive synthesis had been flawed. A judge who does not explain why particular counts are chosen for heavier sentences and for orders of cumulation invites appellate suspicion that error has occurred, but error is not necessarily disclosed, upon close examination.

98. Arguably, the learned sentencing judge failed to adopt the sentencing approach of moderating and cumulating the individual sentences which this court has stated to be the preferred course. If so, that would not lead to the inevitable conclusion that the sentencing approach was in error and that the sentences ought to be set aside and the appellant be re-sentenced. If neither the sentences as imposed individually nor the total effective sentence and non-parole period which were arrived at appear to be outside the appropriate range it might not be necessary to set the sentences aside simply because the process in which they were determined did not conform in all respects with a model sentencing approach.

101. Thus the discrepancy between sentences about which ground 4 complains is not made out unless the sentences here were in fact manifestly excessive, or otherwise displayed sentencing error. I will return to those questions after considering the other rounds of appeal.

105. I turn to ground 3, the complaint that the judge sentenced the appellant on the basis that she had been part of an ongoing enterprise.

108. In sentencing the appellant the judge said as follows:

"Whilst there is no question that the Crown had insufficient evidence to connect you directly with all of the burglaries from which the relevant property emanated, I am satisfied beyond reasonable doubt, that the evidence of close residential proximity to the commission of such burglaries and the concentration of stolen property found in your residence, demonstrates that you were part of an ongoing enterprise involved in the receipt and distribution of stolen property. To this end, any sentencing disposition must convey the clear message that conduct of this nature will not be tolerated."

Complaint is made that by describing this as an "enterprise" the seriousness of the offending was exaggerated. The Crown could not establish beyond reasonable doubt that whilst the items which were located in the appellant's house may have come from different properties, whether she received them at one time or on separate occasions after each burglary, Mr Croucher submitted. The property found on her premises was relatively modest in value and her role was not that of someone engaged in an "enterprise". It was consistent with it being the conduct of a drug addict meeting her need for drugs and to support her family, but without any more significant criminal planning.

113. In my view there is nothing to this complaint. The prosecutor in his submissions to the judge submitted that the proximity of the appellant's residence to the place where the burglaries took place and the close connection in time between the burglaries of those premises and property being found at her home indicated:

"... a serious criminal enterprise of an ongoing nature and it is the prosecution's submission that such an enterprise can only be met with condign punishment, particularly in the face of a long and extensive criminal history, notwithstanding the obvious problems that she has and no doubt your Honour will moderate the sentence that you pass having regard to the problems with her upbringing, her background, drug usage and so on. Nonetheless, it is the prosecution case that a substantial sentence of imprisonment is warranted, because of the number of offences and the ongoing nature of the criminal enterprise."

117. Defence counsel made no complaint as to that characterisation of the offences and in my view it was entirely open to her Honour to come to the conclusion she did. Her Honour's comment was just that, a finding that the offences had been ongoing over a period of months, not a finding of fact that the appellant was involved and was to be sentenced for additional crimes. Her Honour expressly stated that she was careful not to sentence the appellant for offences other than those for which she pleaded guilty. The number of offences and the quantity of goods justified her Honour concluding that even if the appellant's drug habit was a motivating factor her criminal activity was much more than a haphazard and occasional activity. The comment made by her Honour was, in my view, an appropriate one, merely reflecting the seriousness of the handling offences in this case.

121. I turn to the complaint that the individual sentences on counts 3, 4, 8, 16 and 17, together with the orders as to cumulation, the total effective sentence and non-parole period were manifestly excessive or breached principles of totality.

124. Mr Croucher submitted that her Honour had undervalued the mitigating factors in this case.

127. The appellant had an unfortunate history, marred by drug addiction, as a report from psychologist Mr Bernard Healy demonstrated. It is unnecessary to set the history out in detail as substantial extracts from it are contained in the sentencing judge's remarks. Briefly, from an early age the appellant was raised by adoptive parents with whom she had difficulties and she commenced using drugs at the age of 13 and by 17 was taking amphetamine intravenously and heroin intravenously by the age of 24. She developed a very serious heroin addiction which was fed by criminal activity.

130. The appellant has two children, one aged 23, and the other 17 at the time of sentencing. The father of the younger son committed suicide in 1994, the appellant having found his hanging body in the house. Not surprisingly, that event had caused her great distress. Mr Healy recorded that she was a person of low average intellectual capacity and suffered chronic heroin addiction. She suffered stress and some alienation from her sons. She had made many efforts to overcome her drug addiction. She participated in the methadone program whilst in custody on the previous occasion but unfortunately succumbed to heroin again, upon her release. Whilst in custody on this occasion awaiting sentence the appellant had undertaken drug courses and with the combination of a methadone program and antidepressant medication thought she had some prospects of overcoming her addiction.

133. Mr Croucher contended that the value of the property covered by these charges was not so great as to justify such a heavy sentence as was imposed. The prosecutor had placed a value of $60,375 on the property but that included the value of some of the property which had indeed been stolen but was not the subject of any of the handling charges. The actual value of the property found on the appellant's premises would have been very much less than the total value of the goods taken in the burglaries, he submitted. In my view, the precise value of the property was not important. The value of the property in the counts was merely one possible guide for determining the relative seriousness of the offending. Irrespective of the value of the goods which remained in the appellant's possession when her house was searched, her Honour was entitled to conclude, as she did, that the charges involved very significant offending.

136. Her Honour gave extensive attention to the submissions made to her concerning the appellant's drug addiction[7]. She accepted that the offences were committed in the context of a chronic heroin addiction, and also depression and stress. She accepted the opinion of Mr Healey that the appellant was vulnerable, anxious about her responsibility to her sons and as to her inability to provide for them after her release from prison in 2001. The appellant, her Honour found, had limited secondary education, limited work experience and had attempted many times to get off drugs, but without success. She was a hepatitis C carrier as a result of her addiction. Her Honour concluded, however, that the appellant's drug addiction did not mitigate her culpability for the offences. In my view, her Honour's treatment of the factor of drug addiction did not betray error.

139. Whilst the appellant's heroin addiction no doubt substantially explained her offending, the offending was not done solely to feed her habit. The appellant also provided stolen property to her sons and plainly did not convert all the property that she handled into cash for heroin. A heroin addiction might weigh in mitigation but whether it ought do so and to what extent will depend on the circumstances of the particular case[8]. Offences such as these, as her Honour rightly observed, blight the community, and the fact that they are committed so often by persons feeding drug habits tends to emphasise rather than diminish the need to give weight to general and specific deterrence. In my view, her Honour gave adequate weight to this factor, in the circumstances.

142. Her Honour also had regard to the fact that the appellant had pleaded guilty at a relatively early stage but, as she concluded, and as the appellant's counsel properly conceded to be open, the appellant's prospects of rehabilitation were limited. Her Honour noted that there were subsequent offences which also constituted breaches of parole. On 16 May 2002 the appellant was convicted at Broadmeadows Magistrates' Court for aggravated burglary, handling stolen goods, and other offences, and sentenced to further imprisonment. On 19 September 2002 she was convicted of obtaining property by deception and sentenced to 25 days' imprisonment.

145. Mr Croucher sought to compare this case with that dealt with by the Court in R. v. Beary[9]. In that case the appellant was charged with twenty seven counts of theft, one of attempted theft and one of money laundering. It was contended that she had engaged daily in shoplifting to order for another person. She was a drug addict, had 275 prior convictions from 35 appearances, and had received many sentences of imprisonment. The property was valued at about $200,000. The sentence was reduced on appeal to a total effective sentence of four years eight months' imprisonment with a non-parole period of two years and eight months.

148. Mr Croucher acknowledged that the courts have many times deprecated attempts to compare quite different sentencing decisions for the purpose of assessing an appropriate sentence. Sentencing decisions turn on their individual circumstances, and no two cases are ever alike. In the present case, that is plainly so. Beary involved theft by way of shoplifting. In this case the appellant handled stolen property knowing full well that it had been taken at night from the homes of her neighbours while they slept. That is not to punish the appellant for burglary, but to understand the seriousness of the handling and other offences to which she pleaded guilty. Mr Croucher conceded that the sentencing judge was entitled to view the seriousness of the offending from that perspective. The offending in Beary, serious as it was, bore little comparison to the offending in this case, when regard is also had to the probable impact on the victims.

151. Finally, Mr Croucher argued that the individual sentences, at least those that were greater than four months' imprisonment, were manifestly excessive in themselves, having regard to all of the circumstances. Although the approach adopted by the judge to sentencing the appellant was less than ideal, I am not persuaded that the conclusion reached by her Honour as to the individual sentences, the orders for cumulation, the total effective sentence and non-parole period are so far outside the appropriate range as to constitute any of the component parts of the sentence manifestly excessive.

154. In my view, none of the grounds of appeal have been made out and I would dismiss the appeal.

[1] R. v. Nikodjevic [2004] VSCA 222, at [44] per Ormiston, J.A., Callaway and Vincent, JJ.A. agreeing.

[2] See R. v. McCorriston [2000] VSCA 200, at [15]-[16], per Callaway, J.A., Winneke, P. and Buchanan, J.A. agreeing.

[3] As to the correct approach, by way of orders as to cumulation, towards achieving an appropriate total effective sentence when sentencing for multiple offences, see R. v. Grabovac [1998] 1 V.R. 664, at 680-681, per Ormiston, J.A., Winneke, P. and Hedigan, A.J.A. agreeing; and R. v. Lomax [1998] 1 V.R. 551.

[4] [2003] VSCA 152; (2003) 7 V.R. 480, at 485 [23].

[5] See R. v. MDB [2003] VSCA 181, at [13]-[14].

[ ]6 [2004] VSCA 236, at [9], per Callaway, J.A. and at [11] per Nettle J.A.

[7] Although the factor of delay was referred to in the ground of appeal no argument was advanced as to that factor, perhaps in acknowledgment of the fact that the delay was used to the advantage of the appellant before the judge, by contending that she had undertaken rehabilitation programs whilst in custody for the thirteen months preceding sentence.

[8] See R. v. Bernath [1997] 1 V.R. 271, at 275-6; R. v. Bouchard (1996) 84 A.Crim.R 499.

[9] [2004] VSCA 229.