R v Djeri [2006] VSCA 195

4 The Crown concedes that the judge was misinformed and therefore sentenced the appellant on the basis that he had been sentenced in respect of other offences to a

term of imprisonment of 13 months without a non-parole period, whereas in fact he had been sentenced in respect of those other offences to a term of 16 months with a non-parole period of 10 months, and it is conceded that the mistake vitiates the sentencing process and thus re-opens the sentencing discretion. The concession is properly made. It is plain that the judge was misinformed in the fashion alleged and it follows that his Honour sentenced on an incorrect perception of the facts and that the sentencing process is thereby vitiated.

5 The Crown submits, however, and in my opinion correctly, that the judge made no error in respect of the need to set a single non-parole period pursuant to s.14 of the Sentencing Act 1991. The non-parole period imposed under the previous sentence expired on 9 September 2005 and thus before the judge imposed the subject sentences. It now falls to us to re-sentence the appellant.

6 The facts of the matter are set out concisely in the sentencing judge's sentencing remarks. The appellant is 25 years of age and at the time of the offending, between March and August 2004, he was between 22 and 23 years of age. He admitted the accuracy of the further presentment and thereby acknowledged nine previous court appearances, of which the first was before the Magistrates' Court at Dandenong in 1996 for an offence of attempted armed robbery committed when the appellant was only some 15 years of age. His subsequent criminal history included drug offences, some 60 convictions for offences of dishonesty of varying degrees of seriousness, an appearance before the Magistrates' Court at Dandenong on 10 August 2004 for a number of offences of dishonesty, and a further appearance before the Magistrates' Court in February 2005 in respect of subsequent offences.

7 The facts of the subject offences emerge from the summary which was tendered by the prosecutor on the hearing of the plea. Between 8.15 p.m. on 25 March 2004 and 5.15 a.m. on 26 March 2004, the appellant attended at 188 Canterbury Road, Bayswater North, and entered the commercial premises of Dowell Windows with intent to steal therein, by breaking the lock on the chain fence at the rear of the factory premises. They are the facts which comprised count 1. The appellant next entered the office of EAL Transport Pty Ltd, which was situate at the same address, located a set of keys and with the aid of the keys stole a white 1987 Isuzu tray truck registration number QXM205, the property of EAL Transport Pty Ltd, valued at $35,000. They are the facts which comprised count 2. The appellant then used a forklift at the premises to steal 3.16 tonnes of aluminium extrusions, the property of Dowell Windows, valued at $25,000. They are the facts which comprised count 3.

8 On the morning of Friday 26 March 2004, the appellant telephoned the owner of Southern Cross Metal Recyclers and offered to sell to him some of the aluminium extrusions. Thereafter he attended at Southern Cross in the stolen truck with the aluminium for sighting, and then drove the truck to Smorgon's Steel Recycling for weighing and delivery of the aluminium. He returned then to Southern Cross, where he represented that the aluminium was his, and he was given therefor cash and cheques in the amount of $5,871.80 and a tax invoice to Deze Djeri, Trading as Panoramic Fencing. The stolen truck was later abandoned in Laverton North. Those are the facts which comprised count 4.

9 Between 2 and 3 July 2004, the appellant came into possession of 4.8 tonnes of aluminium profiles valued at $30,000, which had been stolen from Bradnam's Windows and Doors at 31 Monash Drive, Lyndhurst. Those are the facts which comprised count 5. Between 2 and 3 July 2004, the appellant stole a white 2001 Mitsubishi tray truck, registration RCR694, valued at $75,000, the property of Bradnam's, and used it to transport the stolen aluminium. Those are the facts which comprised count 6. On 3 July 2004, the appellant called at Southern Cross with the aluminium profiles the subject of count 5. After sighting, he was referred to Simsmetal in McDonald Road, Brooklyn for weighing and he drove there in the stolen truck with the aluminium. Following weighing, he returned to Southern Cross and represented that the aluminium was his to sell and he received therefor a total of $6,580 in cash and cheques and a tax invoice issued in the name of Deze Djeri, Trading as Panorama Fencing. The truck was abandoned in Dandenong. They are the facts which comprised count 7.

10 On or about 23 August 2004, the appellant attended at 20 Zenith Road, Dandenong and entered the yard of Ampelite Fabrications. He there stole a 1992 Isuzu tray truck, registration EWE405, valued at $34,000, the property of Ampelite Fabrications. Those are the facts which comprised count 8. On the same day he came into possession of aluminium profiles valued at $30,000 which had been stolen from Australian Aluminium Finishings on 23 August 2004. They are the facts which comprised count 9. On 23 August 2004 he called again at Southern Cross, driving the stolen truck from Ampelite with the aluminium profiles the subject of count 9. After sighting, he drove to Smorgon's Steel for weighing and then returned to Southern Cross, where he represented that the aluminium profiles were his to sell and he was paid therefor $6,828.80 and issued with a tax invoice in the name of Deze Djeri, Trading as Panoramic Fencing. The stolen Isuzi truck was later abandoned at Williamstown.

11 On 27 August 2004 the appellant was arrested and made a "no comment" record of interview.

12 The judge below referred in his sentencing remarks to the personal circumstances and psychiatric condition of the appellant. According to a report of Dr Simon Kennedy, a clinical and forensic psychologist, the appellant's mother died when he was seven years of age and the appellant grew up in extreme poverty and situations of extreme neglect. He has had ongoing drug problems for most of his teenage life and early twenties, including taking cannabis, heroin and more recently amphetamines. He is an individual with significant mental health and drug problems which require ongoing assistance to prevent recidivism and more significant psychiatric breakdown. According to a report of the consultant psychiatrist, Dr Lester Walton, the appellant is hepatitis C positive and is suffering either from recurring episodes of drug-induced psychosis or schizophrenia complicated by drug abuse; he is strikingly psychologically immature; and it would be ideal if he continued to take antipsychotic medication for the next few months. It is suspected, however, that even while in prison his application in that regard will be erratic and likely non-existent once he is released. Overall, his prognosis in relation to recidivism does not appear to be especially favourable.

13 As the judge observed, this offending was audacious, attended with planning and also demonstrated a familiarity with and an ability to exploit aspects of the way in which quantities of aluminium are moved around in the industry. As his Honour also said, correctly, drug addiction provides scant excuse for offending, particularly on this scale. Therefore, while his Honour noted submissions that were put on behalf of the appellant as to the way in which drugs had blighted his life and been the cause of his repeated offending, his Honour concluded that the appellant's drug dependence and consequent impaired judgment were of only slight mitigatory significance.

14 With respect, I agree with his Honour. All things considered, I see no reason to interfere with the individual sentences or the orders for cumulation which the judge intended. Indeed, given the nature and gravity of the appellant's offending and the consequent need for general deterrence and just punishment, they might be regarded as merciful.

15 That leaves the question of the non-parole period, which, as has been seen, was formulated by the judge on the basis of a misunderstanding as to when the appellant would be eligible for parole under the sentence imposed on him by the Magistrates' Court in February 2005. Despite the mistake that was made, it is not immediately apparent to me why we should now set a shorter non-parole period than previously ordered. As the judge observed, the appellant has failed to avail himself of the opportunities afforded to him on previous occasions by way of non-custodial dispositions and his prospects of rehabilitation appear poor. Given the total effective sentence of two years and nine months and the appellant's antecedents and minimal prospects of rehabilitation, as they appear for the time being, a non-parole period of 20 months is in my view anything but excessive. There is much to be said, therefore, for the view that it should stay as it has been ordered. In

deference, however, to the submissions that have been put on behalf of the appellant, I would be prepared to reduce the non-parole period by a term of six months in order to make it accord with the judge's intention. In the result, I propose that the individual sentences and total effective sentence imposed below be confirmed, but that the non-parole period be re-set at 14 months, beginning on 28 October 2005.

18 The orders of the Court will be as follows:

1. The appeal is allowed.

2. The individual sentences and the total effective sentence which were imposed below are confirmed.

3. The non-parole period which was set below is set aside.

4. A period of 14 months, beginning on 28 October 2005, is fixed as the non-parole period in respect of all sentences which the appellant is to serve or complete.

5. It is declared that a period of 385 days of the sentence has already been served and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties