R v Basso & Frazzetto [1999] VSCA 201

Court of Appeal (Vic)|1999-11-24|Before: CHARLES, BATT and CHERNOV, JJ.A.

Criminal Law - Sentencing - Theft - Motor vehicle - Offences committed whilst on bail for previous offences - Whether aggravating factor leading to increase in sentence - s.16(3C) Sentencing Act 1991 not applicable - Prior convictions more than 10 years ago - Prospects of rehabilitation - Whether failure to take account of all mitigatory factors - Sentences not excessive - Crimes Act 1958, s.376(4).

Applications for leave to appeal against sentence were made by James Cameron Basso and Frank Frazzetto, currently aged 28 and 23 years respectively. The applicants were jointly presented in the County Court at Melbourne on 23 April 1999 on a presentment which contained one count of theft of a motor car on 8 May 1997. Frazzetto was also presented on one count of theft of a motor car between 3 and 4 October 1996 ("the 1996 offence"). Further, Basso was charged with the summary offences of dangerous driving and driving while disqualified (in the stolen vehicle on 8 May 1997). These offences were dealt with by the County Court pursuant to the Crimes Act 1958. On 23 April 1999, the applicants pleaded guilty to the above offences in the circumstances summarised below. Having regard to certain submissions made on behalf of the applicants to which I will refer later, it is necessary first to describe briefly the progress of the proceedings prior to 23 April 1999.

On 7 April of this year the two applicants, together with two co-defendants, were presented in the County Court at Melbourne on one count of conspiracy (between 6 April and 8 May 1997) to steal, contrary to ss.74 and 321N of the Crimes Act. The applicants were also separately presented on a number of counts which need not be particularised. During pre-trial argument, submissions were made on behalf of the four accused on the question of admissibility of evidence obtained through the placement of a listening and/or tracking device by the police in a motor vehicle belonging to Frazzetto purportedly pursuant to a listening device warrant. The prosecution relied on the tape-recorded conversations obtained through the operation of this device to establish the conspiracy charge.

On 22 April 1999, his Honour ruled that all such evidence be excluded from the trial. Consequently, on the folowing day and without objection from the two applicants, the prosecution entered a nolle prosequi in respect of the conspiracy to steal presentment and, in effect, filed new presentments that charged the applicants with the offences referred to earlier and in respect of which they pleaded guilty.

Each applicant admitted prior convictions. Basso admitted 40 previous convictions from 18 court appearances between 20 February 1991 and 13 November 1996. Frazzetto admitted three prior convictions from two court appearances. The court was also informed of Frazzetto's subsequent conviction on 29 May 1997 on two charges of unlawful possession of motor car parts which the police seized on 24 April 1997. A plea in mitigation was made by counsel for each of the two applicants between 23 and 26 April 1999. During the hearing of the plea in mitigation on 26 April 1999, in the context of submissions as to the number of days Basso had spent in custody for the purposes of s.18 of the Sentencing Act 1991, his counsel told his Honour that Basso was on bail in relation to earlier charges when he was apprehended on 8 May 1997. The charges related to alleged theft of a motor car and retention of stolen property (which were said to have taken place in January 1997). Counsel went on to tell his Honour that Basso was subsequently (in other words, after 8 May 1997) dealt with in respect of the earlier charges. She said that she was instructed that the matter was "finalised, out of the way and he'd been properly punished ...". In fact, however, the earlier charges were withdrawn on 18 May 1999 (after Basso was sentenced by his Honour) but in circumstances which were not made clear to this Court.

His Honour sentenced the applicants on 30 April 1999. Basso was sentenced to 15 months' imprisonment on the count which charged the theft of a motor car on 8 May 1997 and to six months' and one month respectively in relation to the summary offences of dangerous driving and driving while disqualified, making a total effective sentence of 15 months' imprisonment. His Honour declared 110 days pre-sentence detention to be reckoned as time already served by Basso. His Honour also ordered that all licences and permits held by Basso under the Road Safety Act 1986 be cancelled and that he be disqualified from holding any such licence or permit for three years. He further ordered that he pay compensation totalling $19,358.

Frazzetto was sentenced to a term of imprisonment of 12 months in respect of the counts which charged the theft of a motor car on 8 May 1997 and to 9 months' imprisonment in respect of the 1996 offence with 3 months to be served cumulatively upon the sentence imposed on the first-mentioned count, thus making a total effective sentence of 15 months' imprisonment with 8 months suspended for 2 years. His Honour also made orders in relation to licences and permits held by Frazzetto as he did in relation to Basso. He further ordered that the Holden Gemini motor car belonging to Frazzetto, and to which reference will be made later, be forfeited.

By notices dated 13 May 1999, each applicant seeks leave to appeal against the sentence imposed upon him. Before dealing with the grounds on which the applicants rely, it is convenient to set out briefly the circumstances in which the offences occurred. On the night of 2 October 1996, an HSV VN Commodore sedan valued at $20,000 was left locked in the street by its owner. It was stolen by Frazzetto. When the vehicle was found in late October 1996, its interior trim and its wheels had been removed and its external side skirts were also missing. A fingerprint that matched that of Frazzetto was found on the internal rear vision mirror of the vehicle. It was otherwise undamaged except for a small indentation in the vicinity of the handle on the driver's door which was the result of the forced entry. (The material before his Honour showed that a similar system of break-in was used in relation to the May 1997 offence.) When he was later questioned by the police in relation to the then alleged offences of October 1996 and May 1997, Frazzetto gave "no comment" answers. At the hearing of the plea in mitigation, his Honour sought to ascertain from his counsel the reason or motive behind the 1996 offence, but apart from putting forward the claim that he wanted parts for his own car (which his Honour rejected) he claimed to have virtually no memory of the event.

On 8 May 1997 at approximately 7.30 p.m., the owner of a modified high performance 1991 Commodore ("Commodore") valued at $20,000 parked it in a car park at Olympic Park in Swan Street, Richmond. When he returned at 11.15 p.m. to collect his car, it was missing. Earlier that evening, at approximately 9.30 p.m. the two applicants, having agreed to steal a motor car, drove in Frazzetto's vehicle (the Holden Gemini) to the car park at Olympic Park where Basso skilfully broke into the Commodore and drove away in it. He was closely followed and effectively shielded by Frazzetto in the Gemini (in which the police had installed a listening device so that its whereabouts was, at relevant times, known to them). Whilst Basso was halted at traffic lights, an unmarked police vehicle blocked off the two lanes of turning traffic in which the stolen car was located. As a policeman was stepping out of the vehicle, Basso first reversed and drove his car at an accelerating speed around, but close to, the police vehicle, hitting its rear bumper and forcing the policeman to move out of the way quickly. Basso then drove through the red light and weaved in and out of traffic. He ultimately lost control of the Commodore, which came to a halt when it collided with a number of stationary cars. Basso then ran away from the scene and sought to hide from the pursuing police, in a tree. When questioned by them later, he admitted the theft and having driven the stolen Commodore while being without a licence. He also told them that the reason he stole the Commodore was that he wanted its seats and wheels for the purpose of completing the re-building of another car which he was going to sell.

The cost of repairs which were required in relation to the Commodore as a result of the damage caused to it was estimated at over $5,000. There was other damage caused by Basso when he drove the stolen vehicle in respect of which his Honour made the compensation orders referred to earlier.

His Honour held, as he was entitled to do on the material before him, that the theft of the Commodore was a planned joint venture between the applicants and that it was carried out in a skilled and experienced manner for the purpose of making a gain. His Honour considered that there was no basis for differentiating between the respective criminalities of the applicants in relation to the May 1997 offence, notwithstanding that each played a different role.

I now turn to deal with the grounds of appeal relied on by the applicants and I do so first in relation to those on which Basso relies.

The grounds of appeal argued by Ms McNiff on behalf of Basso were that his Honour erred in treating as an aggravating factor the fact that Basso committed the admitted offence whilst on bail; that his Honour impermissibly relied on inadmissible evidence to conclude that Basso was a career or professional car thief; that his Honour gave undue weight to prior convictions of Basso which were wholly or almost wholly irrelevant and that the sentence imposed was manifestly excessive.

In support of the first-mentioned ground, Ms McNiff submitted that his Honour erred in treating as an aggravating factor the fact that Basso committed the admitted offence whilst on bail. In his sentencing remarks, his Honour had said that the May 1997 offence was committed by Basso whilst he was "on bail in respect of the earlier charges relating to theft from a motor vehicle and handling. Offending whilst on bail constitutes an aggravating factor." It was submitted that his Honour was entitled to have regard to that circumstance, but he could only do so for the purpose of deciding whether to reduce mitigating factors that might otherwise operate to produce a lower sentence, such as a plea of guilty and other matters going to the question of leniency. It could not be properly taken into account, so it was said, for the purpose of increasing the sentence beyond what it would otherwise have been. Ms McNiff argued that s.16(3C) of the Sentencing Act 1991 was introduced to deal with the situation and it was common ground that the section had no application in the present case. She contended that the lawful sanction for such a breach of bail was revocation of it and possibly, punishment for the breach and that if the circumstances were taken into account as his Honour did, there was a risk of double jeopardy. Ms McNiff also pointed to the withdrawal of the earlier charges on 18 May 1999.

In support of her submissions, she relied principally on what was said in R. v. Gray [1977] V.R.225, 228-230. The Full Court in that case dealt with an application for leave to appeal against the sentence imposed in relation to a number of admitted offences, most of which were committed whilst the applicant was on bail and probation. Two members of the Court, McInerney and Crockett, JJ., held, at 228, that although the sentencing judge was bound to take into account the fact that the offence was committed whilst the offender was on probation, he was nevertheless not entitled to increase the sentence which he would otherwise have imposed (although it was permissible to take it into account in determining whether a custodial sentence should be imposed).

Their Honours also dealt with the circumstance that the offences were committed whilst the applicant was on bail. At 229-230, they said that it was permissible for the sentencing judge to take that fact into account at least to the extent of assessing the prospects of the applicant's reformation. Their Honours went on to say this:

"Furthermore, it may be said that the person who commits an offence on bail has abused or betrayed the confidence reposed in him by the tribunal which granted him bail. The fact that a crime has involved a breach of confidence or trust, e.g. by a solicitor or bank manager or member of the police force, has always been regarded as a matter relevant to the question of sentence - cf. R. v. Wright (No.2) [1968] V.R.174 at p.181."

The sentencing judge, they said, was entitled to take into account the fact that the offences were committed whilst the applicant was on bail or on probation, but what weight was to be assigned to that circumstance, was a matter for him. Their Honours made it clear, however, that they found it unnecessary to decide whether by reason of that circumstance, the sentencing judge was entitled to increase the sentence which he would otherwise have imposed.

Ms McNiff also relied on Treloar & Butler v. R. (1989) 43 A.Crim.R.75. In that case, the Full Court dealt with an appeal against sentence in relation to an offence which included attempted rape with aggravating circumstances. The offences were committed whilst the applicants were on good behaviour bonds. Crockett, J., with whom Fullagar and Marks, JJ. agreed, held, at 80, that such circumstances were relevant "in the way that this Court indicated in ... Gray ... . The court took those matters into account in a manner consistent with the way in which in Gray's case it was said they could properly be considered". It is not clear from his Honour's judgment, however, how the sentencing judge dealt with those circumstances.

Thus, Ms McNiff argued, the fact that the offence in question was committed by Basso whilst he was on bail could be taken into account by his Honour for the purpose of sentencing considerations in much the same way as lack of remorse might be regarded as relevant, but the circumstance could not be properly elevated to an aggravating factor and used as the basis for imposing a higher sentence than would otherwise have been imposed.

I mention at this point that it was not clear to me what relevance the withdrawal of the earlier charges on 18 May 1999 was supposed to have had on his Honour's exercise of his sentencing discretion, but in my view it did not retrospectively create a sentencing error.

Mr Ryan, who appeared for the respondent, submitted that the fact that the offence was committed whilst Basso was on bail was an aggravating factor which could be taken into account by the sentencing judge as a matter relevant to the offender's personal circumstances and that, in an appropriate case, this might lead to a higher sentence than might otherwise have been imposed. He pointed by way of example of an application of this or like principle, to R. v. Pham & Ly (1991) 55 A.Crim.R.128. In that case, Lee, C.J. at CL (with whom Gleeson, C.J. and Hunt, J. agreed) noted, at 134, that Pham was on bail at the time of the commission of the relevant offences and that it should not be overlooked that "it is well established in this State that crimes committed whilst on bail require severely deterrent sentences: see Richards [1981] 2 N.S.W.L.R. 464." A similar view was expressed in Richards's case_._ It seems that in that jurisdiction, the fact that the offence was committed whilst the applicant was on bail is an aggravating factor that can lead to a higher sentence.

The approach by this Court, albeit often unstated in terms, has been to regard the commission of an offence whilst the offender is on bail as an aggravating factor. In R. v. Storey [1998] 1 V.R.359, for example, this Court considered, inter alia, the issues of the onus and standard of proof in sentencing. Winneke, P., Brooking and Hayne, JJ.A. and Southwell, A.J.A. recognised, at 365, that the fact that the offence was committed whilst the offender was on bail, could be described as a "circumstance of the offender". At 366, however, their Honours rejected the utility of drawing a distinction between circumstances of the offender and those of the offence as a basis for "recognising proof of facts which bear upon sentence". A relevant distinction, they said at 369, was between circumstances adverse to the offender (aggravating factors) and circumstances in favour of the offender (mitigating factors). It would follow that since the fact of the commission of an offence during the period of bail is against the interests of the offender for sentencing purposes, it is to be treated as an aggravating factor.

That the aggravating circumstance may, in appropriate cases, point to greater severity of sentence was made clear by Brooking, J.A. in D.P.P. v. England [1999] VSCA 95 at [17], with whose reasons Batt, J.A. and I agreed.

To a great extent, whether the commission of the offence whilst the offender is on bail amounts to an aggravating factor is to be resolved by the application of common sense, as Brooking, J.A. stated in England. That case raised the question whether certain acts of the applicant in relation to the body of a woman whom he had killed, including having intercourse with the corpse, amounted to aggravating circumstances which might lead to an increase in sentence. Brooking, J.A., who delivered the principal judgment, considered it unacceptably artificial to determine the issue by looking only at acts which accompanied the criminal act and at nothing which preceded or followed them. In determining whether a circumstance was an aggravating factor which was relevant to the crime, his Honour said at [18] that judges have always drawn "on their common sense and their moral sense as representing that of the community, in deciding what things about the crime could be said to make it more or less serious". In the context of the case before him, his Honour said that "common sense and moral sense, which are and must be the essential foundation of sentencing principles and practices, unite in rejecting the notion that 'the circumstances of the offence', for sentencing purposes, are neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime."

By committing the offence whilst on bail, the offender usually demonstrates, inter alia, that he or she has little regard for the law and is prepared to offend notwithstanding that he or she has been granted liberty upon a condition of being of good behaviour pending trial. In my view, as a matter of common sense, the commission of an offence in breach of such a condition constitutes an aggravating factor, which can be taken into account by the sentencing judge in determining the appropriate sentence. As their Honours said in Gray, whether such consideration results in an increase in the sentence above what it would otherwise have been must depend on the circumstances of the case.

That the commission of the offence during the period of bail is an aggravating factor has been recognised by s.16(3C) of the Sentencing Act. Where the provision applies, the matter will be resolved by giving effect to the cumulation prescribed by it unless it is otherwise ordered by the court.

Thus, in my view, the commission by Basso of the May 1997 offence whilst he was on bail constituted an aggravating factor which was relevant both to his personal circumstances and to the offence and his Honour properly took it into account for sentencing purposes. There is nothing to indicate, however, that this led him to impose a sentence which was beyond range.

In relation to the next ground, it was submitted by Ms McNiff that his Honour incorrectly characterised Basso as a professional car thief and that he must have done so on the basis of the material which he ruled to be inadmissible for the purpose of the former conspiracy count. That his Honour so characterised Basso's occupation was, so it was argued, evident from his Honour's sentencing remarks in which his Honour said about the May 1997 offence:

"Clearly it was a premeditated and skilfully executed exercise, one might say a professionally and expertly executed exercise. It was obviously done for gain."

A number of things should be said about his Honour's characterisation of the offence. First, what his Honour said described the method of carrying out the theft. It was a reference to the efficiency and skill with which the operation was performed. His Honour's observations were not directed at the occupation of either applicant. Secondly, this finding was open to his Honour on the material before him. It showed, inter alia, that the Commodore was fitted with a macro lock which is a device that cuts power to the battery upon a break-in. Basso's ability to disconnect that system during the theft and to enter the car without causing it undue damage and then drive it away within a relatively short time, gives rise to the inference that he was a skilled and efficient car thief. Thirdly, his Honour's conclusion that Basso was skilful and experienced in stealing motor cars was consistent with his counsel's submission that she would not quarrel with the suggestion that the theft of the Commodore was carried out "in a skilful, apparently experienced, manner". Nor, she said, would she "resist the suggestion that [his Honour could] infer that it was organised, it was premeditated by the two [applicants] and the theft was a slick theft. It wasn't as if it was two teenage lads fooling around with coat-hangers or something like that." At an earlier point, counsel told his Honour that it would be appropriate not to treat Basso as if the theft of the Commodore was the first time that he had been involved in such an activity. Similarly, the police record of interview with Basso to which reference has been made earlier makes it clear that the Commodore was stolen for gain.

Thus, there was ample material before his Honour on which he could properly conclude that the theft was a "professionally and expertly executed exercise". His Honour did not need to resort to the rejected evidence to reach that conclusion. But there is a further reason for rejecting the claim that his Honour relied on such inadmissible evidence. Shortly after the commencement of the plea in mitigation, his Honour raised with counsel for Basso the fact that prior to ruling the material inadmissible, his Honour had listened to the tapes which he subsequently rejected and queried whether he was entitled to treat the information thereby gained by him for the purpose of the sentencing process. Ms McNiff strongly submitted that his Honour could not so use the material and, after some discussion, his Honour acceded to counsel's submissions and ultimately said in his sentencing remarks that he took no account of it. That having been said by his Honour, and there being no material put forward which necessitates a different conclusion, renders the submission to the contrary unacceptable.

Consequently, in my view, this ground must fail.

In relation to the ground concerning irrelevant convictions, it was submitted that the majority of Basso's prior convictions were substantially irrelevant for sentencing considerations but notwithstanding that, undue weight was accorded to them by his Honour. In my view, however, there is no basis for this submission. As his own counsel pointed out, the prior convictions fell into two broad categories, one relating to thefts of cars or car parts and the other relating to street offences. His Honour was entitled to take all those prior convictions into account, and there is nothing in his sentencing remarks which suggests that he gave undue weight to the obviously less relevant prior convictions. In my view, the contrary is the case, namely, that his Honour in terms referred to the prior convictions which related to motor cars, thereby indicating that he regarded them as the more relevant ones for the purpose of his sentencing considerations.

Before passing to the last of the grounds argued on behalf of Basso, I mention another ground which was not argued but which, as I understand it, was not abandoned, namely, that his Honour erred in taking into consideration Basso's appearance in the Children's Court more than 10 years ago. It was submitted that in light of s.376(4) of the Crimes Act, the further presentments should not have included two appearances by Basso in the Children's Court on 22 August 1988 and 6 February 1989 and that his Honour wrongly took them into account in his sentencing considerations It was said that the Crown conceded that such appearances should not have been in the presentment, and in my view that was a proper concession.

The short answer to this complaint is that his Honour was well aware of the above section and its meaning and that his sentencing remarks bear out that he did not take those appearances into account in his sentencing considerations. The further presentment shows that Basso had 21 previous court appearances commencing (chronologically) with the appearance before the Children's Court on 22 August 1988. There is one further such appearance which occurred outside the 10-year period, namely, that of 6 February 1989. In his sentencing remarks, his Honour referred to Basso's prior convictions from "18 or more court appearances, including two convictions for theft of a motor car in 1992 and for handling stolen motor car parts in 1994". It seems clear enough from this that his Honour did not have relevant regard to the two appearances in the Children's Court referred to earlier. He obviously regarded as most relevant the convictions relating to thefts of a motor car and motor car parts which occurred during court appearances well after the two appearances in the Children's Court to which reference has been made earlier. In my view, therefore, no sentencing error was committed by his Honour as contended for on behalf of Basso under cover of this ground.

Ms McNiff made a number of points in support of the ground that the sentence was manifestly excessive. First, it was said that although his Honour took into account Basso's admissions to the police and his plea of guilty for the purposes of sentencing, he in effect neutralised these mitigating factors by reference to the fact that both those matters occurred in the face of "overwhelming evidence" against Basso. Ms McNiff, while not contesting that the evidence against Basso was overwhelming, submitted that the plea nevertheless entitled her client to a sentencing discount. Secondly, it was put that it was only on 23 April 1999 that Basso had the opportunity to plead guilty to the charge in question. It was not until that day that he was charged with that offence, to which he pleaded guilty at the first opportunity, namely, almost immediately after the presentment was filed. Next, it was submitted that had the prosecution not presented the applicants on the conspiracy count, but charged Basso only with the May 1997 offence from the outset, in all probability, the charge would have been heard in the Magistrates' Court where the maximum penalty would have been two years' imprisonment, so that the likelihood was that he would have been sentenced by that court to a significantly lesser sentence than the 15 months' imprisonment which was imposed on him by his Honour.

As to the first two points sought to be made on behalf of Basso, it is clear enough from the sentencing remarks that his Honour took into account Basso's admissions and plea of guilty. His Honour must have also been aware of, and took into account, the fact that Basso had admitted the essential ingredients of the offence shortly after he was apprehended in relation to it, and that it was not until 24 April 1999 that Basso was charged with the May 1997 offence, so that he was not in a position to plead guilty to it before that day. On the other hand, in considering what sentencing discount was appropriate, his Honour was entitled to take into account the fact that the admissions and plea were made in circumstances where there was overwhelming evidence against Basso in relation to the May 1997 offence and that in all the circumstances it did not show much genuine remorse on his part.

As to the next point made on behalf of Basso, whether or not he would have been sentenced differently in the Magistrates' Court is mere speculation. In any event, even if there was a prospect of that taking place, that cannot demonstrate that the sentence imposed by his Honour was manifestly excessive.

Thus, these matters, taken individually or collectively, do not, in my view, demonstrate that the sentence imposed on Basso was manifestly excessive.

In my view, his Honour correctly described how the theft was committed by Basso. Given the circumstances in which it occurred, the sentencing process called for the application of general and specific deterrence. Car thefts are prevalent and cause wide-ranging personal and public detriment. Those who are affected by the crime suffer significant financial and personal detriment, as the victim impact statements that were before his Honour amply demonstrate. Moreover, the wider community is forced to pay high insurance premiums because of the activities of car thieves. The public purse also suffers from such activities. Cars are relatively easy to steal but it takes a good deal of time and effort to locate the stolen vehicles and to solve the crimes. Parliament has prescribed the maximum penalty of 10 years' imprisonment for theft. It is appropriate, therefore, that it should be recognised that those who engage in such crimes will be dealt with strictly by the courts. In the present case, as Basso's own counsel put it, he was given a number of opportunities to mend his ways without undergoing imprisonment. He has had the benefit of suspended sentences, community-based orders and the like which enabled him to remain free in the community despite the offences which he had committed. In all the circumstances, as his Honour correctly recognised, it was also appropriate to apply the principles of specific deterrence in the sentencing process.

His Honour also took into account mitigating factors that were relevant to Basso and, in the result, it cannot be said that the sentence that was imposed on him in relation to the May 1997 offence was manifestly excessive.

Thus, for the reasons that I have given, I would dismiss Basso's application.

I now turn to the grounds of appeal argued on behalf of Frazzetto. Mr Marron, who appeared for him, argued the following grounds, namely, that his Honour gave insufficient weight to mitigating factors, more particularly, Frazzetto's age, the nature of his offending history and his plea of guilty; his Honour gave insufficient weight to factors relevant to Frazzetto's prospects of rehabilitation; his Honour impermissibly took account of the depositional material which he had ruled inadmissible; his Honour failed to give sufficient consideration to the role played by Frazzetto in relation to the May 1997 offence and that each of the total effective sentence and the sentence imposed in respect of the May 1997 offence was manifestly excessive. I mention for completeness that although Mr Marron gave advance notice that he wished to argue that the sentence imposed on Frazzetto in respect of the May 1997 offence was manifestly excessive, it was not part of his grounds of appeal and no application for leave to amend the grounds was made. Nevertheless, the point was argued and, subject to what the other members of the Court may say about it, it may be appropriate to give leave for Frazzetto to amend his grounds of appeal before the order of the Court is pronounced, so as to formalise the matter.

In relation to the first-mentioned ground, it is clear from his Honour's sentencing remarks that he took into account Frazzetto's age, the nature of his offending history and his plea of guilty. As I understand it, the contrary was not contended for by Mr Marron. The complaint was that these matters were merely mentioned by his Honour but were not reflected, as they should have been, in the ultimate disposition of the case. In my view, this is really a particular of the claim that the sentence was manifestly excessive. In my opinion, there is certainly nothing in his Honour's sentencing remarks or in what he had said during the plea that indicates that he gave insufficient weight to those matters in his sentencing considerations or that he placed undue weight on aggravating factors. If anything, the contrary is the case. For example, his Honour said in his sentencing remarks that he "especially [bore] in mind [Frazzetto's] youth". This is wholly inconsistent with the claim that his Honour gave undue weight to this factor.

Similarly, his Honour said that he took into account Frazzetto's pleas of guilty in so far as they saved the court and the community time, trouble and expense. This was a mitigating factor to which his Honour gave weight, and it is trite that any discount for a plea of guilty is within the discretion of the court, there being no formula for the reduction of sentence on account of a plea of guilty.

The difficulty that confronted Frazzetto in this regard was that his Honour was justified in having reservations as to whether he was told the whole truth during the hearing of the plea in mitigation. For example, his Honour did not accept Frazzetto's claim that he carried out the 1996 offence for the purpose of obtaining parts for his own motor car. The prosecution had contended that it was unlikely that this was the real reason for the 1996 offence, because Frazzetto was apprehended on 18 October 1996 driving his Chrysler coupe and the parts from the stolen vehicle were not interchangeable with those from his car. His Honour also did not accept Frazzetto's claim that he had no idea for what purpose the May 1997 offence was carried out. Further, despite Frazzetto's protestations of not being otherwise involved in thefts of motor cars or motor car parts, Mr Rowe, the father of Frazzetto's partner, who was called to give evidence on his behalf, said that Frazzetto had told him that he was "into stealing cars". Moreover, his counsel told the court that on his instructions, Frazzetto had broken with his past, particularly with people like Basso. This contention had to be changed after the prosecution challenged its accuracy. Frazzetto was forced to agree that he maintained contact with Basso, albeit by telephone. Thus, his Honour was justified in having a doubt as to the genuineness of Frazzetto's professed remorse.

The second ground, namely, that his Honour gave too little weight to Frazzetto's prospects of rehabilitation, was based essentially on a claim that his Honour did not have sufficient regard to his personal circumstances, more particularly to matters such as his family and personal relationships, his employment history, his current domestic circumstances, the level of support from his de facto family and the change in the level of contact between Frazzetto and Basso since May 1997. The fact is, however, that his Honour mentioned all those matters in his sentencing remarks in the context of considering Frazzetto's rehabilitation prospects. In his sentencing remarks, his Honour recognised that there were indications that the applicant was likely to rehabilitate himself, and this recognition is reflected in the suspension of eight months' of the sentence that was imposed on him. The reason that his Honour did not give more weight to Frazzetto's prospects of rehabilitation, was that he was not satisfied that he had been told the truth by him. His Honour was entitled to come to that view, given failure by Frazzetto's counsel to provide meaningful answers to his Honour's questions in relation to the matters to which I have already referred.

The next ground related to the claim that it was impermissible for his Honour to have regard to the material which he ruled as being inadmissible in relation to the former conspiracy count for the purpose of characterising the applicant's role in the offences. This argument was based essentially on the premise that by using in his sentencing remarks, the word "professional" in relation to the May 1997 theft in the context to which I have referred earlier, his Honour was characterising Frazzetto as a professional car thief, something which was not supported, it was said, by the material before him. For reasons given by me previously, however, his Honour did not use the term "professional" to denote Frazzetto's occupation as a professional car thief.

It was also argued that there was no evidence that Frazzetto contributed anything more to the commission of the May 1997 offence than transporting Basso to Olympic Park. It was further submitted that the finding by his Honour that the May 1997 offence was premeditated, skilful and executed for gain was not open to him. But for reasons that I have given earlier in the context of analysing the submissions made on behalf of Basso, it was open to his Honour to find that the May 1997 offence was premeditated, skilfully executed and perpetrated for material gain.

There is also no basis, for the reasons that I have already given, for contending that his Honour impermissibly took into account material which he had ruled inadmissible for the purpose of the former conspiracy count.

The next ground was concerned with the claim that his Honour failed to give sufficient consideration to matters relating to Frazzetto, being the significant difference in the ages and the offending histories of the two applicants. Similarly, his Honour did not give sufficient consideration to the conduct of Basso during the attempt by the police to apprehend him.

It is clear from his Honour's sentencing remarks, however, that he took the first two matters into account in his sentencing considerations. Nothing was said by his Honour, nor are there any other factors to which counsel could point, to demonstrate that his Honour did not give them sufficient consideration. His Honour was correct, in my view, in drawing no distinction between the applicants' respective criminality in relation to the May 1997 offence notwithstanding that it was only Basso who broke into the Commodore. As to Basso's conduct when seeking to avoid police apprehension, the fact that he behaved as he did does not assist Frazzetto's position as to sentencing considerations.

In support of the ground that the sentence was manifestly excessive, it was submitted that his Honour did not consider in relation to Frazzetto, sentencing options other than imprisonment. It was said that the combination of Frazzetto having already spent time in prison on remand, having his vehicle forfeited and losing his licence addressed the aspect of general deterrence and that a community-based order was within the range of sentencing options available to his Honour.

The short answer to this aspect of Frazzetto's submission is that these matters were put to his Honour during counsel's submissions on the plea in mitigation. It is clear enough that his Honour must have considered them but decided in the exercise of his discretion to reject them and it has not been shown that his Honour erred in the exercise of that discretion.

Turning to the contention that the sentences were manifestly excessive, in my view each of the total effective sentence and the sentence referable to the May 1997 offence is within the range that was available to his Honour. I have already mentioned the relevance of general deterrence considerations in the sentencing process so far as this case is concerned. The offences to which Frazzetto pleaded guilty were planned and executed with a degree of expertise for the purpose of gain. Further, it was open to his Honour to take the view that Frazzetto was less than frank with the court during the hearing of the plea in mitigation. It is, nevertheless, apparent from his Honour's sentencing remarks that he took into account mitigating circumstances favouring Frazzetto and gave due recognition to what he considered were his reasonable prospects of rehabilitation.

In the circumstances, therefore, neither sentence is manifestly excessive. Consequently, I would dismiss Frazzetto's application.

I agree that these applications must be dismissed, substantially for the reasons given by Chernov, J.A.

I add these comments in relation to Basso's application only, on the question whether the commission of an offence whilst on bail is an aggravating factor in sentencing. I should myself have had no doubt that this was a circumstance of aggravation. In the Court of Criminal Appeal of New South Wales there is a line of authority which establishes in the clearest terms that the commission of offences whilst on bail is to be so regarded: Richards [1981] 2 N.S.W.L.R.464 and Pham and Ly (1991) 55 A.Crim.R.128, which are examples. In Readman (1990) 47 A.Crim.R.181 Maxwell, J. (with whom Gleeson, C.J. and Samuels, J.A. agreed) said at 185 that -

"This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on a parole, will be considered as a matter that aggravates the offence."

In Laurentiu and Becheru (1992) 63 A.Crim.R.402, Wood, J., at 421-422 referred with approval to the fact that the sentencing judge had "noted also the circumstance of serious aggravation that the cocaine offence occurred whilst the applicant was on bail for the heroin offence", and said that this was a matter calling for an accumulation of sentence on the earlier sentence. Kirby, P. said, at 404 -

"Most serious of all was the fact that Mr Laurentiu committed the subject offence whilst he was on bail for an offence of supplying heroin ... . The authorities which Wood J has cited, as well as ordinary common sense which those authorities reflect, indicate the seriousness with which a sentencing judge will ordinarily approach the commission of further grave offences whilst an accused person is on bail."

The Court of Criminal Appeal in New South Wales has variously described the commission of offences whilst on bail as a significant matter of aggravation (McMahon, unreported, 4 April 1996), a significant aggravating factor (Pinkstone, unreported, 14 November 1986), gravely aggravating (Douglas, unreported, 4 December 1987), matters of considerable aggravation (Larsen, unreported, 8 September 1989), the gravest aggravation (Cottier, unreported, 18 December 1990), a circumstance of serious aggravation (Groombridger, unreported, 20 September 1999) and a circumstance of grave aggravation (Hoadley, unreported, 14 September 1990).

The reasons for regarding the commission of an offence whilst on bail as aggravating and in so serious a light are, I think, as Kirby, P. said in Laurentiu, common sense. A person released on bail is invariably required to enter into a recognisance or condition to be of good behaviour. That person is then granted conditional liberty pending trial and, as Street, C.J. said in Richards, at 465, "the community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes".

The amendment of the Sentencing Act 1991 in this State in 1997 to include s.16(3C) is, I think, a clear reflection of this view.

In R. v. Labosco, unreported, Court of Appeal, 9 February 1999, Phillips, J.A. (with whom Phillips, C.J. and Tadgell, J.A. agreed) noted, at 6, that the sentencing judge had treated the commission of offences on bail as an aggravating factor, with apparent approval.

In my view there was no error in the judge's statement that offending whilst on bail constitutes an aggravating factor. But I should add that the sentences imposed by his Honour were in any event in the case of both applicants plainly within range.

I also would give leave to Frazzetto to amend his grounds to claim manifest excess, but I would reject the ground.

I concur in the judgments which have been delivered. I too would grant the leave just mentioned.

I add two observations, the first in relation to Basso's Children's Court appearances. Whilst I agree as to s.376(4) of the Crimes Act 1958, another reason for rejecting the ground (which, in fairness, was all but formally abandoned) may exist in ss.5(2)(f) and 6(a) of the Sentencing Act 1991 and the passage in Pecora v. R. [1980] V.R.499 at 500-502.

Secondly, the argument calling in aid the maximum penalty that the Magistrates' Court may impose was in my view based on the fallacy of treating the head sentence as though it were a non-parole period. The term of 15 months was the sentencing judge's estimation of the first, not of the second, of the two periods referred to by Jenkinson, J. in R. v. Morgan and Morgan (1980)

The order of the Court is that both applications are dismissed.

At a glance

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Before

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Judgment (74 paragraphs)

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