R v Berry [2009] VSCA 219

2 On 21 May 2001 the appellant was to appear in the County Court to plead guilty to two presentments. The first contained nine counts of burglary, 13 counts of theft and one count of trafficking in a drug of dependence. The appellant was presented jointly with a number of co-offenders on most of these counts (the joint presentment). The second presentment contained six counts of burglary, six counts of theft and one count of attempted theft. Pursuant to s 100 of the Sentencing Act 1991 (Vic) a further 33 burglaries, 36 thefts and two attempted thefts were to be taken into account (the s 100 offences).

3 Very shortly prior to the day of arraignment, the appellant absconded leaving his co-offenders on the joint presentment to be sentenced in his absence. The appellant avoided the authorities until surrendering himself to a police station on Christmas Day 2006. The appellant has been in custody since that time.

4 On 1 May 2007 the appellant pleaded guilty to all counts on both presentments. He also agreed that the s 100 offences should be taken into account in fixing sentence. In respect of the second presentment, the sentencing judge stated that he would fix aggregate sentences for each of the categories of offences. He sentenced the appellant to 18 months' imprisonment on the six counts of burglary and six months' imprisonment on the six counts of theft. It was ordered that the aggregate sentence on the counts of theft were to be served cumulatively on the aggregate sentence fixed for the counts of burglary. It was permissible for the sentencing judge to make such orders.[1] For the attempted theft the appellant was sentenced to one month imprisonment with no order made as to cumulation. The total sentence was two years.

5 In respect of the joint presentment it is apparent that the learned sentencing judge also intended to fix aggregate sentences for each category of offences although he did not say so. He imposed a sentence of three years' imprisonment on the nine counts of burglary, and two years' imprisonment on the 13 counts of theft. It was ordered that one year of the aggregate sentence on the counts of theft be cumulative on the aggregate sentence fixed for the burglary counts. Such an approach was also permissible.[2] On the count of trafficking in a drug of dependence, a sentence of six months' imprisonment was imposed. The total sentence on the joint presentment was four years. His Honour appears to have intended that the sentence of two years on the first presentment be cumulated on the total sentence of four years on the second presentment making a total effective sentence of six years' imprisonment. That also was a course open to his Honour.[3] His Honour fixed a minimum term of four years before the appellant was eligible for parole.

6 At the commencement of the appeal the appellant informed the Court that he wished to confine his appeal against sentence to the minimum term that had been fixed. The grounds of appeal that remained relevant raised the contention that the minimum term was manifestly excessive and that the sentencing judge had not properly taken into account the principle of parity, the lack of relevant prior or subsequent convictions, his effective rehabilitation, his plea of guilty and his co-operation with the police.

7 It was properly conceded by counsel for the Director at the outset of the appeal that sentencing error had been established. The reasons of the sentencing judge were deficient in a number of respects. The key circumstances of the offending on the second presentment and on the s 100 charges were not stated. It is not clear what account his Honour took of the aggravating or mitigating factors which had been relied upon by the parties. The learned sentencing judge gave no explanation for the aggregate sentences that were imposed.[4] It is impossible to identify the regard, if any, which the learned sentencing judge gave to the issues identified in the grounds of appeal. As was said in R v Koumis,[5] to ensure that the intuitive synthesis in the sentencing process is not unfathomable and does not conceal error, transparency of reasoning is necessary, at least as to the matters there enumerated.[6] Its absence in the present case leaves the parties, the appeal court and the public to speculate as to what matters were influential in the sentencing decision. The sentencing discretion must therefore be reopened.

8 The charges on the first presentment relate to a series of burglaries and thefts upon retail outlets, mainly service stations, by a gang operating in Melbourne suburbs and some regional towns throughout the period January to July 2000.[7] Outlets that sold cigarettes and tobacco products were targeted. A total of 68 burglaries were identified as having been committed by the gang, during which $391,335.90 worth of cigarettes had been stolen. Not all of the individual accused were involved in every offence. The damage bill for property damage incurred in gaining entry to the various premises was in excess of $65,000.

9 The primary purpose of the offending was to steal cigarettes for cash. The organiser would pay $3 for each third packet of cigarettes that was stolen and the money was split between the participants in the burglary. The appellant told police that he participated to fund a heroin addiction that he said was costing him between $200 and $400 per day.

10 The circumstances of the offending on the counts in the joint presentment are set out in the reasons of the learned sentencing judge:

The offences all arise out of series of burglaries and theft which occurred on retail outlets in the Melbourne suburbs and in regional towns within two hours' drive of Melbourne. The offending commenced in January 2000 and continued until the end of July 2000, and over that period you and your co-offender would strike several locations; for example on 10 May 2000; 23 May and in July 2000, you and your co-offenders carried out two or three burglaries on the one day. Some 68 burglaries were identified as having been committed by the group of which you were a member, although you were not involved in all those burglaries.

The damages occasioned by the forced entry by yourself and other members of the gang is estimated to be in excess of $60,000. The main targets for the burglaries and thefts appears to have been tobacco products, although other products were stolen if they appeared to be of sufficient value. Supermarkets, service stations and convenience stores appear to have been the main targets of the gang. The burglaries appear to have been conducted with careful planning and almost military precision.

The targets having been carefully selected, members of the group would then visit the site to determine the layout of the store, the level of security, and available escape routes. It was only by sophisticated police investigations that you and your other gang members were finally apprehended. Once a target had been identified, one of the members, often yourself, would use a stolen car with false number plates to survey the target and the available escape routes.

In addition, one of the accused, Digenova, who appears to have been the brains behind the operation, would remain at his home listening to a police communications device or a police scanner, and he would then advise the driver of the location of the police cars in the area and the best available escape route so as to avoid detention [sic].

Prior to breaking into the service station or other property the gang would wait until an all-clear was given and either you or one of the co-offenders would gain entry by smashing a glass door or window with a piece of volcanic rock. I am informed the purpose of using a piece of volcanic rock appears to be that volcanic rock would not carry any fingerprints.

Once the target has been entered, one of the gang members would bring in a large nylon bag to hold the stolen cigarettes. Other members of the gang, usually three in number, would empty all the cigarette display cases into the nylon bag. Whilst the burglary was in progress, one of your number would remain in the stolen getaway car maintaining phone contact with Digenova who would then be monitoring the police communications in order to determine the location of police vehicles and whether the break-in had been reported.

11 The burglaries were highly planned and methodically carried out. A three minute time limit was observed to allow escape in the event that an alarm was triggered. The role of the appellant was one of a very active member of the gang, who would commonly reconnoitre and target a retail tobacco outlet before the burglary occurred. The learned sentencing judge found that stolen cars were used in the burglaries. His Honour, further, concluded that the appellant was not a 'minor member' of the criminal group.

12 The count of trafficking arose out of a hydroponics set up for the growing of marijuana. This set up was discovered following the execution of a search warrant on the property of the appellant. The appellant admitted that he sold some 'from time to time'. The appellant said most of the crop was for his own use.

13 Ultimately the appellant and other gang members were apprehended after a sophisticated police investigation which involved telephone intercepts and analysis of the gang's methodology. The appellant was arrested, along with each of his co-offenders, at a property in Newport. Various items relating to the thefts were found on the premises.

14 The appellant's co-offenders were sentenced in 2001. The co-offenders who faced almost identical counts to the appellant on the joint presentment and who had pleaded guilty received head sentences ranging from five years to five years and six months' imprisonment with minimum terms ranging from three years to three years and eight months'.

15 The appellant does not challenge the facts comprising the second presentment as opened by the prosecutor on the plea. These counts related to a series of 'smash and grab' offences committed by the appellant as part of a gang who was apparently targeting telecommunications retail outlets in order to sell phones to a receiver for cash. The counts comprised the theft of a vehicle for the use in the thefts (count 1) and counts arising out of another six incidents targeting three retailers. Each theft or attempted theft involved significant property damage to the windows and occasionally the doors of the stores involved. The appellant, along with his co-offenders, was on each occasion disguised with a balaclava and gloves and the group was typically armed with a volcanic rock to break into the front of the store as well as significant tools (such as a sledgehammer or baseball bat) to negotiate internal security doors.

16 Counts 2 and 3 comprised an attempt on 10 May 2000 to steal from the Telstra Shop in Mentone. After using a rock to smash the shop's front plate glass window, an unsuccessful attempt was made to penetrate a security door by the appellant acting in concert with two others.

17 They appellant and co-offenders then drove to Dandenong where, using the same methods, they entered the premises of Digital World Optus. Once again the offenders were unsuccessful in their attempt to gain entry to the storeroom. They stole cordless phones from the display area and mobile phones from the office area. The appellant later admitted these were sold to a receiver for about $800. They were valued at $4,081.41 (counts 4 and 5).

18 The next day, on 11 May 2000 the appellant and co-offenders returned to the Digital World store. The offenders again wearing disguises and gloves used a baseball bat to smash the front door and this time were successful with a sledgehammer (or similar tool) in gaining entry to the storeroom. They then loaded 68 boxed mobile telephones valued at approximately $29,000 into a large wooden bale. These were then sold to an unknown receiver (counts 6 and 7).

19 On 23 May 2000 the appellant and his co-offenders returned to the Telstra shop in Mentone. Using the same methods they accessed the store room and loaded 10 mobile phones into a large wool bale. The value of the property stolen was $37,200 (counts 8 and 9). Then on 5 July 2000 in much the same way, the appellant and two co-offenders stole another $22,682 of phones from the Mentone store (counts 10 and 11). Later in that morning they attended the Dandenong Telstra shop, but were successful only in stealing a cordless phone from the display area (counts 12 and 13).

20 The offending appears to have ceased following the appellant's apprehension along with the other co-offenders on the joint presentment on 27 July 2000. He was arrested, following bail, in respect of the matters in the second presentment on 17 July 2000. The appellant was then interviewed by the police. He made full admissions in respect of most of the offences put to him.

21 The appellant was born in 1971 and was aged 35 at the date he fell to be sentenced in the trial court below. The appellant's mother and father separated when he was 14 and even before this the appellant apparently had limited interaction with his parents due to their significant shift work commitments. Following the separation he was largely brought up by his mother. He completed year 10 at Williamstown Technical School and went on to do a spray painting apprenticeship. After completing his apprenticeship he obtained stable employment with a company called 'Signcraft'.

22 The appellant then set out to travel around Australia, ending up in Alice Springs where he began work servicing air conditioners during the summer. At the end of the summer in 1998 he was laid off and ran out of money, with his father providing the train fare back to Melbourne. Upon his return the appellant struggled to find regular employment and began to suffer from depression. Some time later in the latter part of 1999, the appellant met up with the Robert and Steven Rabadzievski, two of the co-offenders on the joint presentment. They introduced him to heroin which he had never used before. After a month or so he became severely addicted.

23 The appellant told the police that his participation in these offences was to fund a heroin addiction. At the time of the offences, from April to late July 2000, he was using 1.7 grams a day. The estimated cost of his use per day was somewhere between $200 and $370.

24 The appellant placed substantial reliance upon his treatment for drug addiction which occurred following his arrest in July 2000 and prior to the period that he absconded from bail in May 2001. He had participated in a rapid detoxification program with a Dr Kozminski using Naltrexone.[8] It appears that he overcame his addiction. The Court received the results of 2009 urinalysis tests that are all negative for drug use.

25 On the plea, evidence was called from his girlfriend Pamela Grothius who testified that she had been in a stable relationship with the appellant for nearly 12 months. She testified that he had supported her with some health difficulties. She testified that he was a user of cannabis at the time they met but that he is no longer a user. Also, that he has not been a user of heroin since she has known him and to the best of her knowledge he has remained heroin free since the detoxification program. She said that she intended to stay in a relationship with him during and after any term of imprisonment imposed. As part of the proof of his rehabilitation the appellant surrendered himself to authorities after avoiding detection for over five years.

26 The sentencing judge had before him a psychological report from Dr Ian Joblin who opined:

I felt at the time of my interview with him that the difficulties he had in 2000 were totally over. I felt that his attitude to the offending was most appropriate. While he placed the offences in the context of his drug use, that use is over.

Under those conditions, particularly with regard to the more positive circumstances over more recent years, one must indicate that there is the basis for an optimistic prognosis if he can continue as he was prior to turning himself into police.

27 There was also evidence before the sentencing judge of family support, with the appellant receiving visits from his mother and father. It was further noted that it was his father who paid $3,000 for the private detoxification program undertaken by the appellant.

28 In written submissions, which were elaborated in oral submissions, counsel for the appellant spoke to the good prospects of rehabilitation for the appellant as evidenced by his conduct following the date at which he handed himself into prison in 2006. In December 2009 the appellant will have served three years in prison. He has been completing a course in powder coating through Bendigo TAFE. The Court was informed he will complete the level equivalent to a trade qualification (level 3) in the next two months. He is already a qualified spray painter. The Court also received a Loddon Prison Industry Work Report (dated 29 July 2009) that confirms he is the 'Leading Hand' in the prison coating powder plant. The appellant has further completed the 'Cognitive Skills Program, a 60 hour relapse prevention program run by Corrections Victoria. He has also completed a 40 hour drug and alcohol awareness program conducted by Caraniche Drug and Alcohol Services in October 2007.

29 It was further submitted that the appellant's parents continue to visit him, every fortnight. His relationship, though under stress, continues. The appellant intends to live with his father upon release if he is unable to find his own accommodation.

30 Counsel for the appellant concluded on the plea that he was a man with a trade who is drug free, in a relationship with a respectful and respectable young woman with a good job, and with family support in a position to avoid any further trouble with the law.

Absconding on bail - relevance of the period while a fugitive

31 As already noted, the appellant failed to answer his bail and was a fugitive from justice for five-and-a-half years. In the intervening period the appellant hid from the authorities, before finally handing himself into the police station in December 2006.

32 The appellant's decision to flee while on bail was indicative of a contempt for or disregard of the system of law under which bail was granted; it suggested at the time that the appellant had small regard for the law and little intention of obeying its commands.[9] It was, as counsel for the appellant conceded, also demonstrative of an unwillingness to address the consequences of his wrong doing. These were matters adverse to the appellant. Counsel for the appellant submitted that a court should not wholly disregard matters in the appellant's favour which occurred in the period while he was at liberty in breach of the conditions of his bail. It is submitted that rehabilitation that had taken place during such a period remained 'a significant factor that cannot be put to one side'.

33 In R v Thompson[10] the appellant absconded while on bail and was not apprehended for nearly three years. The evidence put forward on the plea demonstrated the appellant had used those three years to undertake a 'significant change in lifestyle'. This included establishing a new and stable relationship, taking employment and making the most of the opportunities to fully stabilise his life. Street CJ held that the appellant could not claim the full benefit of this in as much as the freedom he used in order to rehabilitate himself was freedom that flowed from his having absconded from bail.

34 It would be an undesirable precedent for courts to encourage persons to abscond from bail and rehabilitate themselves and then come forward and seek to have that taken into account in a significant way when they stand for sentence. To allow leniency in such circumstances would reward the failure to answer bail and would be contrary to the public interest. But as Street CJ observed:

rehabilitation already accomplished will of course always be taken into account however it may have arisen but when it has arisen through self taken liberty by a bail absconder, it will be given less significance than if it has taken place simply in the ordinary passage of time.

35 Thompson was referred to with apparent approval by Phillips CJ in the

35 unreported decision of Stephenson.[11] It was cited by Winneke P in R v Whyte[12] in support of the conclusion that delay that is fairly attributable to the accused will result in 'less credit' being given for rehabilitation established during that period. In R v Mundy[13] Maxwell P, with whom Buchanan and Vincent JJA agreed, said that the mitigating effect of rehabilitation during a period of delay must be greatly reduced where it is the offender's absconding which has created the delay and enabled him to demonstrate a period of law-abiding activity in the intervening period. The President and Vincent JA also adverted to the fact that, between co-offenders, rehabilitation during a period of self-created delay could not advantage the absconder over those who complied with their bail conditions. The latter consideration is relevant in the present circumstances.

36 I would adopt the approach taken by Street CJ in Thompson and treat any rehabilitation during such a period as having a significance that might be reflected by a non-parole period which is something less than that which might otherwise have been appropriate had the offender been dealt with at an earlier date. Such an outcome appears consistent with the observations made in Mundy.

37 A primary benefit of a minimum term is that it might further the purpose of the offender's rehabilitation. Thus, a sentencing judge's assessment of the offender's prospects of rehabilitation will have a significant bearing on the minimum term to be fixed.[14] Accordingly, the appellant submitted that in fixing the minimum term, he should be sentenced 'for the man he is today' on the facts now before the Court. It was submitted that course was open even though his rehabilitation during the period of his absconding be given little mitigating weight. It was said that, even if the Court put to one side the period of delay in his sentencing between 21 May 2001 (when he failed to appear) and 25 December 2006 (when he surrendered to police), the sentencing judge still ought to have given full weight to such rehabilitation as was demonstrated during the period between his arrest on 27 July 2000 and 21 May 2001, and the further period between 25 December 2006 and the date of sentence in May 2007.

38 Rehabilitation during the period between the laying of charges and sentence is an important sentencing consideration.[15] The appellant complained that the learned sentencing judge had failed to take into account the appellant's prospects of rehabilitation in setting the minimum term of imprisonment. Counsel correctly submitted that, for the purpose of re-sentencing, this court could take account of his rehabilitation during those periods[16] together with his further demonstrated rehabilitation since he commenced to serve his sentence. He also urged the court to attach modest weight to his demonstrated reform during the period of his absconding in accordance with the authorities to which I have referred.

39 The evidence of the appellant's rehabilitative efforts including his reformation from drug addiction during the periods following his arrest and before his absconding, and the period since he surrendered himself to police is compelling. It would be open to the court to take into account the unhappy condition of the appellant living as a fugitive forever in fear that he would be exposed.[17] While the evidence of his rehabilitative efforts during his period as an absconder can only receive slight weight, it cannot be overlooked that such evidence is confirmatory of the state of his rehabilitation in the other periods that I am bound to take into account.

40 As the appellant's rehabilitation is already well advanced, I would allow the appeal and fix a non-parole period which is somewhat lower than that fixed by the learned sentencing judge. I would not otherwise alter the sentences imposed. No complaint was made as to the total sentences on each presentment or the total effective sentence. They were tailored having regard to the sentences previously imposed upon the appellant's co-offenders and taking into account the s 100 offences. The sentences could not be described as other than lenient.

41 As the theft and burglary offences on both presentments are offences 'which are founded on the same facts, or form, or are part of, a series of offences of a same or a similar character' they are, as the sentencing judge concluded, suitable categories of offences for the imposition of aggregate sentences. That is to say, I would fix an aggregate sentence for the burglary counts and an aggregate sentence for the theft counts on each presentment. I am also content to adopt the same approach as the learned sentencing judge and treat all of the individual counts in each category on the same presentment as warranting the same sentence and treat concurrency as appropriate between the individual counts which form part of each aggregate sentence. An order for cumulation should be made as to part of the aggregate sentence for the theft counts on each presentment on the aggregate sentence for the counts of burglary on each presentment.

42 On the joint presentment I would sentence the appellant as follows:

1. An aggregate sentence of three years' imprisonment on the nine counts of burglary.
2. An aggregate sentence of two years' imprisonment on the 13 counts of theft.
3. Six months' imprisonment on the count of trafficking in a drug of dependence.
4. 4. Order that one year of the aggregate sentence on the counts of theft be cumulative on the aggregate sentence for the burglary counts, making a total sentence of four years.

On the second presentment I would sentence the appellant as follows:

1. An aggregate sentence of 18 months' imprisonment on the six counts of burglary.
2. An aggregate sentence of six months imprisonment on the six counts of theft.

3. One month's imprisonment on the count of attempted theft.

1. Ordered that the aggregate sentence on the counts of theft be served cumulatively on the aggregate sentence for the counts of burglary, making a total sentence of two years.

I would order that the total sentence of two years on the second presentment be cumulated on the total sentence of four years of the joint presentment, making a total effective sentence of six years' imprisonment. I would fix a non-parole period of three-and-a-half years before the appellant is eligible for parole. It must also be recorded that each of the offences listed in the accompanying schedule were taken into account pursuant to s 100 of the Sentencing Act 1991.

43 I have had the benefit of reading in draft the reasons of Redlich JA. I respectfully agree with his Honour that the appeal should be allowed and the appellant should be re-sentenced as his Honour proposes.

[1] R v Grossi [2008] VSCA 51; (2008) 183 A Crim R 15, [43].

[3] R v XA [2009] VSCA 52, [28].

[4] DPP v Felton [2007] VSCA 65; (2007) 16 VR 214; R v Grossi [2008] VSCA 51; (2008) 183 A Crim R 15, [40].

[5] [2008] VSCA 84; (2008) 18 VR 434, [61]-[65].

[7] With the exception of the sole trafficking count.

[9] Basso & Frazzetto [1999] VSCA 201; (1999) 108 A Crim R 392; R v Gray [1977] VicRp 27; [1977] VR 225, 229-30 (McInerney and Crockett, JJ).

[10] (1987) 37 A Crim R 97, 100.

[11] R v Stephenson (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 5 September 1995).

[12] [2004] VSCA 5; (2004) 7 VR 397, [25]

[13] [2008] VSCA 184.

[14] R v Tran [2006] VSCA 222, [28].

[15] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, [39]-[44] (Maxwell P).

[16] [37] above.

[17] Shore v R (1992) 66 A Crim R 37, 47; R v Whyte [2004] VSCA 5; (2004) 7 VR 397, [25].