R v Bult [2008] VSCA 227

Mr S Ward, Acting Solicitor for Public Prosecutions

1 Wayne John Bult pleaded guilty to one count of burglary, two counts of theft and one count of aggravated burglary in the County Court on 17 October 2007. The circumstances of the offending were as follows.

2 On 19 April 2007 at approximately 8.30 am, a woman left her home to go to work. As she left, she set the home alarm. Some time that afternoon, the appellant forced entry to the premises either through a locked window or door. He stole a mobile telephone, a gold ring, a wallet, and two credit cards, together valued at approximately $7,000.

3 These events comprise the burglary, Count 1, and one of the theft counts, Count 2.

4 The next day, on 20 April 2007 at approximately 8.45 am, the appellant attended the home of another, this time a man. He entered the house and moved through several rooms stealing a camera and a leather wallet containing credit cards. The appellant went upstairs and entered the bedroom where the male occupant was talking on the telephone. The occupant recognised the appellant as a person who had attended his house approximately one month earlier claiming to be a photographer and enquiring about using the house garden for a photo shoot.

5 Upon being seen, the appellant fled the house and the occupant gave chase, shortly catching up with the appellant and reclaiming some of his property. The appellant continued to flee, yelling that he knew where the occupant lived. He fled on a tram but was arrested shortly thereafter.

6 These events comprise the aggravated burglary count, Count 3, and the other theft count, Count 4.

7 Burglary and theft both carry a maximum sentence of ten years' imprisonment. Aggravated burglary carries a maximum sentence of 25 years' imprisonment.

8 On 14 November 2007, the appellant was sentenced in the County Court as follows: Count 1, 18 months' imprisonment; Count 2, six months' imprisonment; Count 3, two years and six months' imprisonment; Count 4, six months' imprisonment. The sentencing judge directed that 12 months of the sentence imposed on Count 1 be served cumulatively on the sentence imposed on Count 3. The total effective sentence imposed was three years and six months' imprisonment, a non-parole period of two years' imprisonment was imposed.

9 The appellant appeals against sentence on the grounds that

(1) the individual sentences, total effective sentence and non-parole period, are manifestly excessive;

(2) the learned sentencing judge erred in application of the sentencing principle of totality;

(3) the learned sentencing judge erred in ordering excessive cumulation; and

(4) the learned sentencing judge erred by failing to properly take into account the period of imprisonment that the appellant was required to serve by virtue of the Adult Parole Board's revocation of a period of parole that was owed by the appellant.

10 It is submitted that ground four relates to the reimposition of parole. The appellant's parole had been cancelled due to non-compliance. The cancellation occurred on the morning of the sentencing and the sentencing judge was aware of that cancellation.[1] However, the sentencing judge was not informed as to how much time would actually be served as a result of the cancellation. His Honour said that,

In the circumstances, I do not have that information and accordingly it seems to me it is inappropriate for me to take any further action with respect to the matters raised by Justice of Appeal Redlich in the case of Alashka[r].[2]

11 It was submitted that this approach infringed section 5(2AA) of the Sentencing Act 1991 and misconstrued the effect of R v Piacentino[3] and R v Alashkar.[4]

12 The advice of the Adult Parole Board, as conveyed to the sentencing judge, provided as follows:

The Board considered the contents of your letter in relation to Mr Bult at a hearing that took place today, Thursday 8 November. At the conclusion of the meeting, the Board cancelled Mr Bult's last parole order because of non-compliance. As you know, when the Board cancels a parole order, the offender is liable to serve the whole outstanding period of his or her original sentence. According to our file, Mr Bult owes the Board two years, three months and three days at the time of cancellation.

As soon as the outstanding matters before the County Court are finalised, a results and recommendations report will be prepared by a Community Corrections Officer. The report will provide the Board with an outcome to the outstanding matters and the author will make recommendations about Mr Bult's suitability for parole. As soon as the report is filed, the Board will immediately review his case.

13 On the basis of the principles in Piacentino and Alashkar, the Crown has conceded error with respect to ground 4 and thus the sentencing discretion is reopened. However, it was urged for the Crown that the individual sentences imposed and the total effective sentence and non-parole period were extremely modest for the serious offences. In all the circumstances, the court was urged not to impose different sentences.

14 With respect to ground 1, it was argued for the Crown that the sentences were modest and well within the permissible range having regard to the seriousness of the offending and the atrocious criminal history of the appellant. With respect to the other grounds it was urged for the Crown that each episode represented serious offending and in all the circumstances, 12 months' cumulation was within the permissible range.

15 The appellant pleaded guilty at an early opportunity, namely when a properly formed presentment was filed.

16 As the learned sentencing judge observed, the appellant has been a heroin addict since the age of 19. He is now 43 years of age. In February 2004, he commenced a sentence of a duration of 42 months and was released in July 2006. Thereafter, the appellant made efforts to rehabilitate himself and gained employment with a removalist company. He came to be offered a permanent position, but when the employer became aware of his criminal record, the employment opportunity effectively evaporated by his amount of work on offer being reduced. By that time the appellant had acquired financial obligations with respect to accommodation and the leasing of a vehicle. Upon losing his employment, he was overborne by those circumstances. In addition, at the time of sentencing he was very concerned about the health of his stepmother who was diagnosed with lung cancer. He had been endeavouring to assist his father in looking after his stepmother. His father had not been coping with the demands and stress of the illness.

17 The appellant has a long history of prior convictions. Between 25 February 1983 and 16 February 2004 he appeared before the courts on 19 occasions and was convicted of 260 offences. The situation was succinctly summarised by the sentencing judge,

The offences range from attempted armed robbery and assault to drug charges involving both heroin and cannabis, various driving charges, street offences and failure to answer bail as well as what appears to be the entire range of property offences involving burglaries, thefts, obtaining property by deception, handling stolen goods, being in possession of property suspected of being stolen or unlawfully obtained.[5]

18 At the time of sentencing, the learned judge observed that the appellant had been involved in rehabilitation programs between 2005 and 2007, both inside and outside the prison system, through a theatre entity known as 'Plan B Project'. He has continued his rehabilitation in prison by attending the Violence Intervention Program. The appellant has completed 13 out of the total 33 session program. He has not missed any sessions.

19 Victim impact statements were provided by the two victims to the offending. They mutually express their sense of invasion of their individual homes, person and property. The male victim was affected by the statement of the appellant, 'I know where you live.' The offending has affected the victims' lives and interaction with other people and strangers.

20 As matters stand, we take the appellant as we find him, namely on the basis that he is to serve out the remainder of his earlier term, two years, three months and three days. We do not take account of any possible decision of the Adult Parole Board - that is the prohibited speculation.

21 Thus, on the basis of the present sentence under appeal of three years and six months, together with the previous remaining sentence of two years, three months and three days, the appellant faces a total sentence of five years, nine months and three days. The offending, particularly the aggravated burglary, was serious and warranted a strong sentence. This is all the more so in the context of the appalling criminal history of the appellant.

22 Nonetheless, the total sentence as it stands would be the largest sentence the appellant has yet faced. There is no error in the individual sentences imposed. Counsel for the appellant relied entirely on the matter of totality. Approaching the matter on that basis is persuasive.

23 The appellant is endeavouring to rehabilitate himself. He might be viewed as a hopeless case, yet in light of his age and his efforts, it seems to me he should be recognised for those efforts. In effect, this might well be his last opportunity in the overall scheme of things.

24 Bearing in mind the principles of totality, I would moderate the sentence below by reducing the period of cumulation on Count 1 to six months. The reduction is modest but the opportunity for discount is limited by the seriousness of the offending overall.

25 Accordingly, I would allow the appeal, set aside the sentence below, and in lieu thereof, sentence the appellant as follows

• Count 3 - two years and six months' imprisonment; and

26 I would direct that six months of the sentence on Count 1 be served cumulatively on the sentence imposed on Count 3, making a total effective sentence of three years. I would fix a non-parole period of two years.

29 Orders will be made accordingly as indicated in my judgment, and further, the court will make the usual direction with respect to pre-sentence detention being a period agreed at 573 days.

[3] [2007] VSCA 49; (2007) 15 VR 501.

[4] [2007] VSCA 182; (2007) 174 A Crim R 435.