R v Howard [2009] VSCA 281

2 The appellant was employed as a forklift driver by Toll Tasmania Pty Ltd at its premises at Port Melbourne. He was engaged in loading a container intended to be transported to Tasmania. The most valuable part of the cargo loaded into the cargo was seven motor cycles. A quantity of building materials, such as door kits, insulation, piping and a scaffold were also loaded into the container. The appellant entered a false number in documents relating to the container, which resulted in another container being shipped to Tasmania in its stead. The appellant arranged for one Samson Opatiah to pick up the container and take it to the workplace of Jason Spence in North Sunshine. Mr Opatiah agreed to perform this work for a fee of $1,000. Mr Opatiah transported the container to North Sunshine, where Jason Spence supplied a forklift to unload the container. The container was moved to a builder's compound. It has never been recovered. Its value was $15,000. The appellant spent some time, though unsuccessfully, trying to sell the motor cycles.

3 When the appellant was interviewed by the police he largely admitted the offence. The appellant is now 30 years old. He had prior convictions for driving offences. Like the sentencing judge, I regard those prior convictions as of little relevance, save only that they may indicate a disregard for the law.

4 The appellant left school at the age of 15 years and obtained employment as a tyre fitter. He was then apprenticed as a diesel mechanic and employed in that capacity for some two years. He did not complete the apprenticeship. Thereafter he worked for various employers, including a bakery and a company that serviced machines for paper manufacturers, before being employed by Toll Tasmania Pty Ltd.

5 The appellant formed a relationship with a young woman, and they sought to purchase a house. They could not obtain a loan because they were unable to raise a deposit. They encountered financial difficulties, and it was in that context that the appellant gave way to temptation. He stole the container and its contents.

'The learned judge erred -

(a) in imposing a sentence which infringes the principles of parity among co-offenders when regard is had to the sentences imposed on the appellant's co-offenders;

(b) in discounting the appellant's sentence on account of his plea of guilty by a manifestly disparate amount when compared with the corresponding discounts for co-offenders. The learned judge erred in failing to give a sufficient discount for the appellant's early plea of guilty.'

7 Samson Opatiah was sentenced to a term of 12 months' imprisonment on a count of theft and to a term of six months' imprisonment on a count of attempting to pervert the course of justice. The terms were made concurrent and the sentence was wholly suspended for a period of two years. Jason Spence was sentenced to be imprisoned for a term of 15 months on a count of handling stolen goods. This sentence too was wholly suspended for a period of two years.

8 Counsel for the appellant pointed out that Mr Opatiah denied to the police that he had participated in the theft and falsely implicated a co-worker. Mr Opatiah had prior convictions for obtaining property by deception, damaging property and causing injury recklessly. Upon his arrest, Jason Spence denied his involvement in the theft and, unlike the appellant, gave no assistance to the authorities.

9 Counsel for the appellant also submitted that there was a manifest disparity in the discounts given to the co-offenders for their pleas of guilty. The sentencing judge said that, but for the plea of guilty, he would have imposed upon the appellant a sentence of imprisonment of 36 months, with a non-parole period of 21 months. The discount represented 16.7% of the head sentence. In the case of Mr Opatiah, the stated discount was 33.3%, and in the case of Mr Spence it was 37.5%.

10 Settling upon appropriate differences in the punishment to be meted out to co-offenders is no more an exact science than is the fixing of a sentence upon an individual offender. There is no single correct difference, just as there is no single correct sentence. The question is whether the sentencing judge has arrived at a result that is so unreasonable that an appellate court can infer that there has been a failure to properly exercise the sentencing discretion.

11 In my opinion, the differences in the sentences imposed upon the appellant and his co-offenders are adequately explained by the roles which they played. The appellant planned the crime and largely carried it out. He enlisted his co-offenders to perform limited tasks in the overall enterprise. The rewards promised to Mr Opatiah and Mr Spence by the appellant were relatively modest. The appellant planned to appropriate to himself most of the proceeds of the crime. The differences in the parts played by each of the offenders in the execution of the theft were more important in my view than the differences in their personal circumstances.

12 Although I do not think that the sentences infringe the principle of parity, the different discounts for the pleas of guilty stipulated by the trial judge are anomalous. I regard the differences as an aspect of the sentencing judge's failure to accord sufficient weight to the appellant's plea of guilty. The appellant pleaded guilty at the first opportunity. He made a statement fully admitting his role in the offence and implicating a number of other persons. He testified that he was prepared to give evidence against the others. In my opinion, the appellant should have received a discount of the order given to his co-offenders. The discount attributed to the appellant's plea undervalued it.

13 The offence was serious. It was carefully planned; the property stolen was valuable; the appellant gained access to the container and was able to extract it from his employer's custody because of the trust reposed in the appellant by his employer.

14 I consider that a different sentence should be passed, although not one which would vary substantially from that imposed by the sentencing judge. I would re-sentence the appellant to be imprisoned for a term of two years and six months, and I would fix a minimum term of one year's imprisonment before the appellant is to be eligible for parole. But for the plea of guilty, I would have re-sentenced the appellant to a term of four years' imprisonment and I would have fixed a minimum term of three years' imprisonment.

15 I agree. For a judge to give too much or too little weight to a sentencing consideration is not necessarily sentencing error but where it is manifest, as it is here, that a sentencing judge has grossly undervalued the importance of the discount for pleading guilty, it may be viewed as sentencing error and the sentencing discretion re-opened.

16 In light of s 6AAA of the Sentencing Act 1991 and the social utility of encouraging offenders to enter an early plea of guilty, the discount allowed for an early and unconditional plea of guilty should ordinarily be substantial.

17 I too would set aside the sentence passed below and re-sentence the applicant as the learned presiding judge proposes.

The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of two years and six months, and it is ordered that the appellant serve a term of one year's imprisonment before he is to be eligible for parole.

It is declared that a period of 270 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

19 Like the sentencing judge, I overlooked the summary offence, dealing with property suspected of being the proceeds of crime, and we propose to deal with the matter in the same way as the sentencing judge below, so that we would amend the orders I pronounced this morning by adding that:

The appellant is to be sentenced to a term of one month's imprisonment on the summary charge of dealing with property suspected of being the proceeds of crime, and it is ordered that the sentence be served concurrently with the sentence on the count of theft.

Also, we order that the compensation, forfeiture and disposal orders made below be confirmed.