R v Berkelaar [2001] VSCA 143

7. The appellant, who is now aged 34 years, pleaded guilty in the County Court to four counts of theft (counts 1, 2, 5 and 7), two counts of burglary (counts 4 and 6) and one count of handling stolen goods (count 3). The maximum custodial penalties are ten years' imprisonment for theft and burglary and 15 years' imprisonment for handling stolen goods. The appellant admitted 64 previous convictions from seven court appearances between 1989 and 1995. Most of them involved crimes of dishonesty, including a conviction for armed robbery, eight convictions for burglary and 41 convictions for theft.[1] After a plea for leniency was made on his behalf, on 30 June 2000 the appellant was sentenced to a total effective sentence of five years' imprisonment with a non-parole period of four years, to be served cumulatively on any period of imprisonment that he might be required to serve on cancellation of his parole. A declaration was made regarding 10 days pre-sentence detention.

10. The appellant was granted leave to appeal against the sentence. The grounds of appeal are:

"1. The sentences imposed are manifestly excessive. 2. The sentences imposed failed to sufficiently take into account the principle of totality. 3. The sentence imposed should not have been ordered to be served cumulatively upon the sentence which the appellant was then undergoing. 4. There should have been a greater degree of concurrency between the sentences imposed. 5. An error was made in relation to the allowance for the pre-sentence detention. 6. The judge failed to sufficiently take into account the principle of parity in so far as it applied to the sentences to be imposed upon the appellant and the co-accused."

14. Before turning to the grounds, I shall describe the offences, the roles played by the co-offenders, Tanya Audrey Gommers, Daniel Stephen Grocock, David John Batrouney and Bryan Frederick Cross, and the appellant's history.

17. Counts 1 and 2 charged the theft of a Hino tray-truck and a number of sheets of cool room panelling belonging to South Eastern Cool Rooms Pty. Ltd. ("South Eastern Cool Rooms") on 13 March 1999 and, later that day, of a number of truck tyres and rims, a CB radio and audio equipment belonging to Volgren Australia Pty. Ltd. ("Volgren"). Grocock drove the appellant to the premises of South Eastern Cool Rooms, where the truck they stole was already loaded with cool room panelling valued at approximately $6,000. The truck itself was valued at about $5,000 and approximately $4,400-worth of damage was caused when it was driven through the locked gates of the cool room yard. The appellant drove the truck to the Volgren factory, meeting Grocock, who was at Batrouney's factory across the road. The truck was loaded with truck wheels and rims and then driven to Batrouney's factory, where it was unloaded. Those actions were then repeated. The cool room panelling was used either as a ramp or a pathway to facilitate easy movement of the tyres and rims. Fifty truck tyres and rims and a CB radio and audio equipment were stolen. They were valued in excess of $70,000. The tyres and rims were sold to Cross and another man, who paid $12,000, of which the appellant received approximately $2,000.

20. Count 3 charged that the appellant dishonestly assisted in the retention of a stolen Holden Calais motor vehicle between 5 April and 6 August 1999. The vehicle had been stolen from a Dandenong car-park and, during the period charged, the appellant changed the rims and tyres.

23. Counts 4 and 5 related to a burglary and theft at the CV Tools factory in South Dandenong. Gommers drove the appellant there on 10 April and he told her to pick him up later. When she returned she found that he had loaded up a tray-truck owned by CV Tools with a quantity of tools taken from the factory. She opened the roller doors and he drove the truck through the locked gates of the premises and on to the place where Gommers was living, where the truck was unloaded. The appellant then drove the truck to Hallam with Gommers following in her car. He drove the truck through another set of locked gates, jumped clear and allowed it to career on before coming to rest in a ditch. The truck was valued at approximately $20,000 and the tools at approximately $25,000.

26. Counts 6 and 7 related to a burglary and theft committed at the Goodyear Auto Service Centre in Dandenong over the weekend of 22 to 24 May 1999. The appellant first disconnected the alarm system at the premises and then spent some 18 hours loading a Goodyear truck with tyres and rims, a safe and a number of other items, which he then drove to Gommers' house. The tyres were later sold for $8,000. Gommers obtained some cans of spray-paint and the two of them re-painted the truck. The safe, which had been opened, was later found abandoned near Beaconsfield. The total value of the goods stolen on that occasion, together with the cost of repairs to the truck, amounted to approximately $70,000.

29. It is convenient at this point to refer to the individual sentences imposed on each count, the directions for cumulation that were given and the sentences that were imposed on Gommers, Grocock, Batrouney and Cross. They are set out in the following chart:

• months' imprisonment (Wholly suspended for 24 months

• years' imprisonment. (1 year cumulative on Count 6)

(3 months cumulative on Count 4. Wholly suspended for 24 months.)

• months' imprisonment. (Wholly suspended for 18 months.)

(3 months cumulative on Count 4. Wholly suspended for 24 months.)

2½ years' imprisonment. (1 year cumulative on Count 6.)

(3 months cumulative on Count 4. Wholly suspended for 24 months.)

35. The directions for cumulation reflect the fact that there were four separate episodes, of which the judge ignored one (count 3) in the interests of constructing an appropriate total effective sentence.

38. The appellant, who left school aged 15 years, lived in Perth until he was some 21 years of age, when he came to Melbourne. There he began his criminal career, and obtained in Victoria the convictions described above. As a result of those convictions he was imprisoned on four occasions. In October 1995 the appellant was sentenced to four years' imprisonment on charges of arson and offences of dishonesty and was ordered to serve a minimum term of two-and-a-half years' imprisonment before being eligible for parole. On release from that imprisonment on parole on 16 March 1998 the appellant obtained employment as a process worker and a second job as a welder. For some years the appellant had been using amphetamine. The sentencing judge found that the appellant's amphetamine use led to conflict with his wife. He left home, ceased work, failed to meet his parole obligations and reverted to crime. In June 1999, however, the appellant underwent a sea change: he returned to his wife and work, stopped using amphetamine and ceased to commit crimes. The appellant was arrested in respect of the offences the subject matter of this appeal on 30 December 1999, and was reclaimed by the Parole Board. The parole order had been cancelled on 18 June 1999.

41. I will defer consideration of grounds 1 and 2 of the notice of appeal, namely that the sentence was manifestly excessive and infringed the principle of totality.

44. Ground 3 complains of the cumulation of the sentence upon that which the appellant was undergoing. It requires consideration of s.16(3B) of the Sentencing Act. The sub-section provides:

"(3B) Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment ('the parole sentence') must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order."

The sentencing judge rejected as exceptional each of the circumstances put forward by counsel for the appellant to justify a direction that the sentence not be served cumulatively, namely, that the offences were due to the effects of amphetamine, that the 1995 sentence was imposed some years ago, and that the appellant was now free from drugs and behaving well in prison. In my view the sentencing judge's conclusion was correct.

49. Ground 4 is that more concurrency of sentences should have been ordered. His Honour imposed the following individual sentences:

Count 1, theft - 12 months' imprisonment Count 2, theft - two years' imprisonment. Count 3, handling stolen goods - six months' imprisonment. Count 4, burglary - two-and-a-half years' imprisonment. Count 5, theft - two-and-a-half years' imprisonment. Count 6, burglary - three years' imprisonment. Count 7, theft - three years' imprisonment.

Apart from the cumulation pursuant to s.16(3B), the sentencing judge ordered that one year of the sentence upon count 2 and one year of the sentence upon count 4 be served cumulatively upon each other and upon the sentence on count 6. There were three principal raids performed by the appellant. Each was distinct in time and place. The sentencing judge's orders reflect the fact that his Honour regarded the crimes arising from each raid as part of one criminal episode. I do not think the sentencing judge erred in cumulating parts of the sentences in respect of what were distinct criminal transactions. This was not a case where more than one offence arose from the same act or acts; nor was this a case where a series of offences formed part of a single criminal episode. Whether the cumulation produced a disproportionate sentence is more directly raised by grounds 1 and 2.

54. Ground 5 was argued on the basis that all of the period after the arrest of the appellant until the date of sentence should have been reckoned as a period served by way of pre-sentence detention, thereby preserving the entitlement of the appellant to obtain further parole in respect of the remainder of the sentence imposed in 1995. The deduction from the sentence of time during which a prisoner has been held in custody before sentence is governed by the provisions of s.18 of the Sentencing Act 1991. The section has no application to a period of imprisonment which is being served as part of a pre-existing sentence. The time that the appellant spent in custody from the date of his arrest until the imposition of the sentence the subject matter of this appeal was served as part of a pre-existing sentence.[2] During that period he was not held in custody in relation to proceedings for the offences in respect of which he was sentenced on 30 June 2000, and that period was not to be reckoned as a period of imprisonment already served under the sentences imposed on that date.[3]

57. The order in which the sentences were to be served is governed by s.15 of the Sentencing Act.[4] Section 15(1) provides:

"(1) If an offender has been sentenced to several terms of imprisonment in respect of any of which a non-parole period was fixed, the offender must serve - (a) firstly, any term or terms in respect of which a non-parole period was not fixed; (b) secondly, the non-parole period; (c) thirdly, unless and until released on parole, the balance of the term or terms after the end of the non-parole period."

Neither the term of imprisonment imposed in 1995 nor the term imposed in 2000 answers the description of the term defined in paragraph (a). The only non-parole period remaining, to which paragraph (b) applies, is the term of four years' imprisonment imposed in 2000. Finally, paragraph (c) covers the one year after the expiration of the minimum term fixed in 2000 and the balance of the term imposed in 1995. The Parole Board may again release a prisoner on parole although the prisoner's parole has been cancelled on a previous occasion in respect of the same prison sentence.[5] In the course of his submissions with respect to totality, counsel for the appellant contended that the combined effect of the 1995 and 2000 sentences was a total effective sentence of nine years' imprisonment with a minimum term of eight years' imprisonment. I do not agree: serving the sentences in the order prescribed by s.15(1) will produce a non-parole period of some two and half years.

62. As to parity (ground 6), the sentences of imprisonment imposed on Gommers, Grocock and Cross in my view were appropriate having regard to their roles in the crimes. The appellant, who was the planner and director, merited sterner punishment. The fact that the sentences of Gommers, Grocock and Cross were wholly suspended is a reflection of their personal circumstances, which were quite unlike those of the appellant.

65. Tanya Gommers had three court appearances resulting in fines for two offences. Other offences were found proven but convictions were not recorded. Grocock had no relevant prior convictions. Cross had prior convictions, but the most recent of them was 15 years old when he was sentenced. The sentencing judge found that Gommers and Grocock felt genuine remorse, whereas no such finding was made with respect to the appellant. Indeed, it was not even submitted by his counsel that he was remorseful. Gommers and Grocock gave assistance to the police at what his Honour described as "significant personal risk". Cross, whose involvement was limited to one offence, committed an offence said by the sentencing judge to be "opportunistic".

68. Batrouney was not inferior to the appellant in terms of the hierarchy of those who committed the crimes, and as the principal receiver he facilitated the commission of the crimes of burglary and theft. Batrouney received a head sentence of two years and nine months' imprisonment with a non-parole period of 15 months' imprisonment. He had prior convictions, but his most recent court appearance was in May 1978. His Honour was able to say:

"I do not regard your prior convictions as having any impact on the sentencing process."

73. I am of the opinion that the involvement of the appellant's co-offenders in the crimes themselves and their personal circumstances justified the different treatment they received, for the conduct and antecedents of the appellant and his co-offenders were not comparable.[6] I do not think that the appellant could feel a justified sense of grievance as a consequence of their sentences.

76. Returning to the grounds dealing with manifest excess and totality, the crimes committed by the appellant were serious examples of their kind, involving careful planning and bold execution, leading to the wrongful taking of property of considerable value. The prior convictions of the appellant perhaps explain how he relapsed into criminal activity so easily. He is not to be punished again for his earlier crimes but the crimes cannot be described as aberrant. They were unfortunately no new departure in the appellant's life. The appellant was entitled to a discount as a result of pleading guilty to the charges. His resumption of a respectable life shortly before he was sentenced was also a mitigating factor. The sentencing judge took both matters into account. A separate complaint is made of the relatively short period between the minimum term and the total effective sentence. Having regard to the prior convictions of the appellant I do not think the minimum term demonstrates sentencing error. In my opinion the overall and individual sentences were not disproportionate to the crimes and the appellant's personal circumstances.

79. In Postiglioni v. R.[7] McHugh, J. referred to a line of authority in the Court of Criminal Appeal in New South Wales in which it had been held that, in order to comply with the totality principle, a sentencing judge must consider the total

criminality involved not only in the offences for which the offender was being sentenced, but also in any offences for which the offender was currently serving a sentence.[8] When a sentence was to be made cumulative with an existing custodial sentence, the judge was to take into account the existing sentence so that the total period to be spent in custody adequately and fairly represented the totality of criminality involved in all of the offences to which the total period was attributable. Assuming the applicability of that line of authority, it would appear that the sentencing judge did take into account the whole of the sentence imposed upon the appellant in 1995 and the sentence he was imposing. He said:

"In imposing sentence today I have borne the all important principle of totality very firmly in mind and the sentence to be imposed today is imposed on the basis that the Parole Board may require you to serve the whole of the parole sentence which you are currently serving. I have looked at and considered the whole of the gaol time which you may be required to serve as a result of the parole sentence, and the sentence I impose today which will be ordered to be served cumulatively to the parole sentence. In other words I have looked at the whole of the gaol time."

In my view in using the term "parole sentence", his Honour was referring to the total effective sentence imposed in 1995, not merely the additional period which the appellant was to serve due to the breach of parole. The term has that meaning in s.16(3B) of the Sentencing Act. I am also of the opinion the sentence imposed upon the appellant, when aggregated with the sentence imposed in 1995, was not disproportionate to the whole of the criminal conduct in respect of which both sentences were imposed.

90. In my opinion, for the reasons given by Buchanan J.A., the appeal should be dismissed.

[1] Thirty-two of the convictions for theft were at one hearing in November 1991.

[2] R. v. Broad [1999] VSCA 149; [1999] 3 V.R. 31.

[3] The judge's declaration of 10 days pre-sentence detention was incorrect.

[4] See also s.17 of the Act which provides that a sentence of imprisonment commences on the day on which it is imposed.

[5] See s.78 of the Corrections Act 1986.

[6] See Lowe v. R. [1984] HCA 46; (1984) 154 C.L.R. 606 at 617 per Brennan, J.

[7] [1997] HCA 26; (1997) 189 C.L.R. 295 at 308.

[8] R. v. Bakhos (1989) 39 A.Crim.R. 174; R. v. Harrison (1990) 48 A.Crim.R. 197; R. v. Gordon (1994) 71 A.Crim.R. 459. See also R. v. Coss (1995) 78 A.Crim.R. 551.