R v Belhaj [2006] VSCA 153

1 The applicant, who is now aged 30, pleaded guilty in the County Court to two counts of burglary (counts 1 and 3) and two counts of theft (counts 2 and 4). The maximum custodial penalty for both those offences is 10 years' imprisonment. He admitted 31 previous convictions from five appearances in the Magistrates' Court between May 1993 and May 1998. They included ten charges of theft, two charges of burglary and charges of going equipped for stealing, being in possession of property suspected of being stolen or unlawfully obtained and handling stolen goods. Two of those court appearances had resulted in short immediate custodial sentences, but in 2001 he was sentenced to 14 months' imprisonment, with a non-parole period of six months, for offences of dishonesty, and further custodial sentences were imposed in 2004.

2 After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant to three years' imprisonment on each count. His Honour directed that 12 months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of four years' imprisonment. A non-parole period of two years was fixed and a declaration made regarding three days' pre-sentence detention. The applicant seeks leave to appeal against sentence on the following grounds:

"1. The sentences imposed on the individual counts, the total effective sentence and the non-parole period imposed in respect of that sentence are manifestly excessive.

2. The individual sentences imposed on counts 3 and 4 are disproportionate to the sentences imposed on counts 1 and 2, when regard is had to the disparate value of property stolen.

3. The learned sentencing judge failed to give sufficient weight to delay in the prosecution of the matter."

3 The circumstances of the offending sufficiently appear, for present purposes, from the sentencing remarks. As the judge explained, there were two incidents, one in the early hours of 7th March and the other in the early hours of 29th March 2001. On the first occasion the applicant broke into a store and stole about $58,000-worth of electrical goods. On the second occasion he broke into another store and stole about $4,500-worth of electrical items. The purpose of the offences was to finance his heroin addiction.

4 The applicant was not arrested until January 2004, when he was interviewed and made a "no comment" or denial record of interview. The delay between January 2004 and the date of sentence, 3rd November 2005, was caused by committal proceedings and negotiations about the quantum of the items stolen. The judge accepted that, from an early time, the applicant indicated that he would not contest the substance of the allegations. His Honour also accepted that the plea of guilty evinced remorse and shame, but it had been conceded by counsel that there was no significant evidence of rehabilitation. The gap between the head sentence and the non-parole period was therefore generous. His Honour explained the reason for the gap. It was to give the applicant an opportunity to break his addiction and to benefit from a period of supervision and in recognition of the fact that, although he had received immediate custodial sentences in the past, they had been for shorter terms.

5 Mr McLoughlin argued ground 3 first. Delay was also a matter much pressed on the plea. As I have already explained, the offences were committed in March 2001, the applicant was not charged until January 2004 and he was not sentenced until November 2005. It is enough to say that I agree with the way in which his Honour dealt with this matter.

6 Under cover of ground 2, counsel referred to the different amounts involved in the two incidents. He rightly conceded that the value of property stolen is not the only consideration, but he contended that the difference here was so great that it had to be reflected in the sentences imposed on counts 3 and 4 as compared with those imposed on counts 1 and 2. Reliance was placed on R. v. Krieg[1] and R. v. Nikodjevic[2].

7 There are a number of answers to that contention. One is that a sentence often reflects the plea. Counsel below had referred to the lesser quantum on count 4, but only in aid of a submission that there should be a measure of concurrency between the two episodes of offending.[3] Another answer is that overworked trial judges cannot be expected to fine tune every sentence. Care is one thing but pedantry is another. The latter is a waste of judicial resources. R. v. Krieg was a different kind of case, as the remarks of Cummins, A.J.A. show[4]. In R. v. Nikodjevic Ormiston, J.A. expressly said that the inconsistencies he identified did not amount to specific error[5]. In the present case, the substance of the matter is that the applicant broke into the two stores and stole what he could find.

8 There were two components of Mr McLoughlin's submissions in support of ground 1. First, he submitted that the individual sentences were out of kilter with other sentences imposed in recent years for burglary and theft. He gave a number of examples and referred to the discussion by Nettle, J.A. in Director of Public Prosecutions v. Lehmann[6]. The other component of the submission was to the effect that the judge gave insufficient weight to mitigatory factors, including the applicant's unfortunate background, the fact that he was on a methadone programme, that he had complied with bail conditions for eleven months prior to sentencing and that his early plea of guilty had particular value, given that he had made no admissions and that the DNA evidence putting him at the scene of the burglaries was the only material on which the Crown could rely. Reference was again made to the topic of delay. The judge was well aware of the applicant's efforts to rid himself of his heroin addiction and referred to the methadone programme, but the fact remained that the applicant was still addicted. All the submissions made as part of the second component of counsel's argument under ground 1 have to be evaluated against the concession made on the plea that there was no evidence of significant rehabilitation.[7]

9 In the course of the argument it emerged that his Honour had made a mistake of fact in the course of the sentencing remarks. At paragraph [16] he said:

"The fact that you have continued to offend through until as late as December last year. "

December 2004 was the date on which the applicant was released. The material does not show the date of his last offending. In another case such a mistake might be of consequence, but here, as Mr Gamble submitted, it did not significantly change the overall picture. It was just a slip. Appropriately, there is no ground alleging specific error. The error was prayed in aid as part of the argument contending for manifest excess.

10 Taking all those matters into account, in my opinion, none of the grounds is reasonably arguable. Structural arguments are to be discouraged. Generally speaking, they are not upheld unless they reveal error in the instinctive synthesis.[8] These sentences represent a permissible broad-brush approach. The non-parole period is merciful. The head sentence may well be severe by comparison with sentences in other cases, but that is not enough. A court of three judges would not be entitled to substitute its own opinion in the absence of specific error or manifest excess. The primary sentencing discretion is rightly confided to the judge below.[9] When that is borne steadily in mind, I do not think it is reasonably arguable that the total effective sentence is outside the range. Both specific and general deterrence were plainly relevant, but protection of the community was relevant too. Far from his Honour failing to give sufficient weight to the delay in prosecuting the matter, delay was the subject of careful analysis in the course of the sentencing remarks.

11 The order of the Court is:

Application for leave to appeal against sentence refused.

---

[1] [2005] VSCA 23.

[2] [2004] VSCA 222.

[3] See transcript p. 21.

[4] At [42].

[5] At [44].

[6] [2005] VSCA 9 at 15.

[7] See transcript pp.18 and 22.

[8] See R. v. Albanus [2004] VSCA 236 and R. v. Ash [2005] VSCA 43.

[9] R. v. Raad [2006] VSCA 67 at [28].