R v Jones [2004] VSCA 68

Court of Appeal (Vic)|2004-04-01|Before: PHILLIPS and CHARLES, JJ.A. and BONGIORNO A.J.A.

Criminal law - Sentencing - Multiple burglaries and thefts - Rolled-up count for 24 thefts - Contrast with representative count - Rolled-up count acceptable when accused pleading guilty - Cumulation and concurrency - Youthful offender with numerous previous convictions - T.E.S. of six years with non-parole period of 3½ years not manifestly excessive.

2 On 1 April 2003 the appellant, who was born on 14 June 1979, pleaded guilty to a filed-over presentment containing 24 counts of burglary with intent to steal and four counts (counts 5, 11, 26 and 28) of theft. The maximum penalty for all these offences was 10 years' imprisonment. The appellant admitted eight previous findings of guilt from three court appearances between 23 May 1994 and 2 October 1998 and 88 previous convictions from four court appearances between 15 November 1999 and 6 October 2000. None of these appearances resulted in a sentence requiring immediate imprisonment. However, on 6 October 2000 the appellant was convicted at the Magistrates' Court at Sunshine on a large number of charges and was sentenced to a total effective sentence of two years, wholly suspended for two years. Then, on 13 March 1991, he appeared at Sunshine Court for a breach of the suspended sentence and received a term of imprisonment of 17 months from which he was released on parole in November 2001.

3 Three of the offences of theft, counts 5, 11 and 26, related to the theft of motor cars. Count 28 was a "rolled-up" count relating to each of the burglaries covered by the remaining 24 counts and which alleged that the appellant, "at various locations in and around Melbourne" between 4 October and 2 December 2000, stole quantities of cigarettes and other items belonging to various businesses enumerated in a schedule attached to the presentment.

4 After a plea on 1 April 2003, the judge passed sentence on the appellant on 21 May. On the rolled-up count of theft the appellant was sentenced to four years' imprisonment. On each of counts 1, 2 and 3, in each case burglary, the appellant was sentenced to six months' imprisonment. On each of counts 5, 11 and 26, the three counts relating to stolen motor cars, the appellant was sentenced to three months' imprisonment. On each of counts 7, 12, 16, 18, 19, 20 and 27, in each case burglary, the appellant was sentenced to six months' imprisonment. On each of the remaining 14 counts of burglary, the appellant was sentenced to three months' imprisonment.

5 The orders for cumulation were complex. The base sentence became count 28. Six months of the sentences imposed on counts 1, 2 and 3, which had been made concurrent with each other, were made cumulative upon count 28. Further orders for cumulation were made in relation to three months of the total of the sentences imposed on counts 5, 11 and 26 relating to the stolen cars. A further six months' cumulation was added in relation to the seven counts of burglary, being counts 7, 12, 16, 18, 19, 20 and 27. A further nine months' cumulation was added in relation to the remaining 14 counts of burglary. The result was a total effective sentence of six years' imprisonment and the judge fixed a non-parole period of three years and six months.

6 The appellant was granted leave to appeal pursuant to s.582 of the Crimes Act 1958 on 11 December 2003. The grounds of the appeal are that:

The sentence was manifestly excessive;
The judge erred in relation to the application of the principles of specific and general deterrence;
The sentence on count 28, the "rolled-up" count of theft, is manifestly excessive and inconsistent with the sentences imposed on the other counts;
The judge erred in ordering total cumulation of the sentences on the counts of burglary upon the sentence on the "rolled-up" count; and
The judge erred in taking into account criminal damage, offending in respect of which the appellant was neither charged nor convicted.

7 The circumstances giving rise to the offences were as follows. The presentment covers 24 burglaries committed upon retail business premises between 4 October and 2 December 2000. All burglaries were for the purpose of stealing large quantities of packaged cigarettes. The burglaries were committed by the appellant and Richard Haddara, on occasions with other unidentified offenders. All were committed at night upon small supermarkets and service stations which were closed. Entry was usually gained by breaking a window with a rock, a brick or some other object. Often an alarm was triggered. On occasions the offenders were seen by witnesses or recorded by security cameras. The offenders were heavily disguised with balaclavas, beanies, masks and wigs and invariably wore gloves to avoid leaving fingerprints. Upon gaining entry the burglars would ignore all other goods or property, including the cash register, and concentrated instead on stealing as many cigarettes as possible. Most of the burgled premises had cigarettes in locked containers above or near the counter, while other premises had cigarettes kept in locked storerooms. The burglars usually used a crowbar or other tools to prise open locked containers and doors to get at the cigarettes. The burglars would then load into a bag as many cigarettes as they could pick up and carry away. On at least three occasions a motor vehicle stolen by the offenders from a nearby location was used to leave the scene with stolen cigarettes.

8 Count 28, the rolled-up count, encompasses, as I have said, the 24 separate thefts which occurred in the course of each burglary. The value of the cigarettes stolen in each burglary, as set out in the schedule to the presentment, ranged from $1,500 to $16,000. The total value of the cigarettes stolen in the burglaries was in the order of $143,000, a matter expressly conceded by defence counsel during the plea.

9 It is relevant to note that the case against the appellant was a circumstantial one. He was never identified either by witnesses or with the assistance of security camera footage. The appellant never left fingerprints or biological material at the scene of any of the offences, nor did he make any admissions in three tape-recorded interviews conducted with him by the police on 28 November 2000 and 8 February or 4 June 2001.

10 Although the case against the appellant was circumstantial, ultimately it became a strong case. It was based on biological material matching the appellant's DNA profile detected on a balaclava found a short distance away from the scene of one of the burglaries. The police observed the appellant's car in the area of one of the burglaries and thereafter installed an electronic tracking device on his car which monitored and recorded the changing location of his vehicle at future times. The police had the appellant under surveillance on and after 1 November 2000. Telephone records in relation to the appellant's mobile telephone service also disclosed the location of the appellant at the times of his mobile telephone calls over the relevant period. Almost every time one of the burglaries in this matter took place a call would be made from the appellant's mobile telephone a few minutes before or after the time of the burglary in the same telephone region as the scene of the burglary. Furthermore, on one occasion the police officers investigating the suspected receipt and sale of stolen cigarettes executed a search warrant at a milk bar in Altona Meadows where they found large quantities of cigarettes, many in bundles held together by rubber bands. The appellant's fingerprints were found on three cigarette packets.

11 At the plea, the appellant's counsel conceded that these burglaries amounted to a well planned series of offences executed in a "fairly slick operation", and that there were aggravating features such as the wearing of gloves and the use of crowbars to effect entry into areas where the cigarettes were held. Particular reliance was placed on the claim that these offences were brought about by what was said to be the appellant's raging drug habit, at one point costing some $1,200 per day. Reliance was placed on his youth, he being aged 21 at the time of these offences, and his plea of guilty which, although entered late in the proceedings, had the effect of saving considerable time, expense and inconvenience since some 110 witnesses were likely to have been called by the Crown. The appellant also had a good family history and a happy family home and had completed an apprenticeship as a butcher, leaving him with a qualification which would support his rehabilitation when he was released from prison.

12 The first of the grounds of the appeal (ground 3) argued by Mr Croucher, for the appellant, related to the rolled-up count of theft, count 28. Mr Croucher submitted that where an offender is to be sentenced in respect of an offence which is representative of a number of offences, the sentencing judge is not entitled to impose a sentence in respect of other crimes, but may take such other crimes into account in determining whether or not the offence for which the offender is being sentenced is an isolated offence. He submitted that in sentencing on a rolled-up count the discretion is to be exercised in the same way as it is when a count is treated as a representative count. On this basis, he argued, the sentence on count 28 cannot stand, for there could be no doubt that the judge sought to impose a sentence that reflected all of the thefts associated with the 24 burglaries.

13 I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative count the judge is not entitled to impose sentence in respect of other crimes.[1] But in my view, a rolled-up count is entirely different from a representative count. In Mr Silbert's written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty.[2] If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. Mr Silbert argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.

14 Accordingly, count 28 spanned the whole of the period of the appellant's offending and was inextricably intertwined with each of the remaining 27 counts on the presentment. A sentence of four years' imprisonment for a course of conduct covering 24 separate thefts involving the theft of cigarettes to the value of $143,000 over this two month period was, I think, demonstrably within the range open to the sentencing judge. This ground should be rejected.

15 Under ground 4, Mr Croucher contended that the judge had erred in ordering total cumulation of the sentences on the counts of burglary upon the sentence on the rolled-up count, count 28. He argued that insofar as theft and burglary both involve an intention to steal, to order total cumulation between any two such offences would almost always amount to double punishment. Next he argued that the matter was complicated by the rolled-up nature of count 28. He submitted that the orders for cumulation were defective by making individual sentences related to theft wholly cumulative upon sentences for related burglaries without any explanation for such a process of cumulation. Then it was put that the judge must, having passed a very long sentence for the rolled-up count of theft, have felt himself compelled to pass considerably shorter sentences on the burglary counts to comply with totality, but then decided to make several of them wholly cumulative which, it was put, was contrary to authority such as DPP v. Grabovac[3]. Finally, Mr Croucher submitted that the orders for cumulation were contrary to the submissions of both counsel at the plea. Counsel for the appellant had submitted that the sentence on the rolled-up count of theft should be wholly concurrent, but that it would be open to order "some cumulation" of the burglary sentences. On the other hand, the prosecutor had argued that "there would certainly be an argument for a substantial degree of concurrency between the sentence imposed on count 28 and the overall sentences from the burglaries".

16 The judge was faced with a particularly complex task in this case having regard to the very large number of offences committed by the appellant. It was natural that count 28 should become the longest individual sentence and therefore the base count for the purposes of the overall sentence, having regard to the duration of the offending covered by this count and the fact that it was connected to each other count on the presentment. The judge was obliged to sentence the appellant for both the theft and the burglaries, offences which do involve some common elements but which are certainly not identical. It was submitted by Mr Silbert that by fixing a low sentence for the counts of burglary, the judge was able to cumulate such sentences without falling into error and while paying proper regard to the principle of totality. He submitted that the basis upon which the judge selected the rolled-up count and accumulated the other counts thereon was transparent and entirely logical and the sentence could not on any view be characterised as an "unexplained process of cumulation".

17 The total period of imprisonment imposed on counts 1 to 27 inclusive was nine years and three months. As a result of many of these counts being made concurrent with each other, while accumulating only 24 months on the basal sentence, the judge was able to impose a substantial degree of concurrency with the sentence imposed on count 28. Mr Silbert did not concede that the sentences on the burglary counts were inadequate, arguing that all were within range although imposed at the lower end. He submitted that it was open to the judge to construct a sentence in the manner chosen in order to fix an appropriate sentence having regard to all the matters the judge was obliged to take into account.

18 The Crown's argument is, in my view, correct and the judge was not in error in the process of cumulation selected by his Honour in this complex and difficult case.

19 Under ground 5, it was argued that the judge erred in taking into account the criminal damage caused by the appellant in these various burglaries, that being offending in respect of which he had been neither charged nor convicted. The prosecutor had opened the fact that a total of some $40,000 worth of property damage was done in the course of the various burglaries. Mr Croucher submitted that the judge had taken that fact into account in sentencing the appellant. The judge did indeed mention that some degree of damage had been caused to premises burgled and noted the fact that damage to premises caused by the appellant's actions was of the order of $40,000. I do not, however, accept that the judge was in error in mentioning this fact. The judge was, I think, doing no more than mentioning the circumstances of the various burglaries and putting into context for sentencing purposes the burglaries which had occurred. Again, I do not accept that any error has been shown.

20 Under grounds 1 and 2 it was argued that the judge had erred in imposing a sentence which was manifestly excessive and in the application of the principles of specific and general deterrence. It was argued that the judge must have given insufficient weight to mitigating factors and too much weight to specific and general deterrence. While it was accepted that the burglaries were numerous and the appellant's many prior convictions relevant, it was submitted that a head sentence of six years was extremely heavy for an offender relatively young at the time of the offending, who had pleaded guilty, had been battling drug addiction at the time of the offending and had a solid work history and reasonable prospects of rehabilitation. Mr Croucher submitted that both the total effective sentence and non-parole period should be reduced.

21 The appellant's counsel, in a well prepared and very sensible plea to the sentencing judge, made a number of entirely proper concessions, including that this series of offences had been well-planned and, in effect, organised and premeditated, with a number of aggravating features. The judge correctly, in my view, referred to

the offending as "this outrageous assault upon the small businesses of Melbourne". Counsel at the plea conceded that the offences obviously called for a period of actual imprisonment and recognised that the appellant "will be spending some considerable period of time in custody", which it was put hopefully would put him "on a good stepping-off point when released to kick his drug addiction". Counsel at the plea argued that the appellant's age, his prospects, his previous qualification and good family were all factors which should move the judge to set a lengthy period of parole. In my view, this was precisely the course taken by the judge. The period of parole fixed was indeed unusually long. The head sentence was well justified by the extent of the appellant's offending. The claim of manifest excess, either as to the total effective sentence or non-parole period, has not been made good.

22 I agree. The basis upon which Charles, J.A. proceeds assumes that the application for leave to amend is granted and I agree; it should be granted, but the appeal dismissed.

23 As to ground 3, I must say I found the argument that focused on count 28 troubling because the form in which count 28 was cast was obviously the result of agreement between the parties, agreement intended, no doubt, to facilitate the appellant's plea of guilty. As Charles, J.A. has pointed out, count 28 replaces what were earlier 24 separate counts of separate thefts between 4 October and 2 December 2000 and count 28, in its present form, is now a "between dates" plea, specifying the period from 4 October to 2 December. Moreover, it alleges in that period the appellant "stole a quantity of cigarettes and other items belonging to various businesses enumerated in the enclosed schedule", and all 24 separate incidents are then identified in the schedule. The parties can have been in no doubt at all about the matters relied upon by the Crown and the matters to which the applicant was pleading guilty.

24 Of course, had the matter gone to trial, the form of pleading in count 28 could not have been sustained, but the matter did not to go to trial; it was to be conducted as a plea of guilty. To put it shortly, the argument to us as to count 28 seems to cut right across the basis on which the plea was conducted - and conducted by arrangement between the parties.

25 As to ground 4, for myself I am not yet persuaded that there was any order for "total cumulation" as ascribed by counsel. Each order for cumulation related to sentences imposed on three or more like counts.

26 As to the overall structure of the sentences, I think that the judge might well have seen the burglary offences as incidental to the thefts and, if so, I would see no error in that. For the reasons given by Charles, J.A. the appeal should be dismissed.

27 I agree for the reasons given by Charles, J.A. the appeal should be dismissed. I would grant the appellant leave to amend the grounds of appeal.

28 The order of the Court is that the appeal be dismissed.

[1] R. v. SBL [1998] VSCA 144; [1999] 1 V.R. 706 at paras 69-70; R. v. Holyoak (1995) 82 A.Crim.R. 502.

[2] The practice is referred to in Heath: Indictable Offences in Victoria 3rd Edition 1992 at 17 and appears to be based on the decision in R. v. Coombs (unreported) Court of Criminal Appeal of Victoria, 3 September 1979 per Young, C.J. The practice has been acknowledged in R. v. Gary John Newham [2000] VSCA 138 per Ormiston, J.A. At para. 2; R. v. Warren Edward Deakes [2002] VSCA 136 esp. Per Eames, J.A. at paras 52 to 56; R. v. Steven Mark O'Neill [2003] VSCA 26, esp. Per Phillips, C.J. in para. 5, and most recently in R. v. Coukoulis [2003] VSCA 22 by Ormiston J.A. See and compare also R. v. Carver, Court of Appeal, 3 June 1996 per Callaway, J.A. at 11-12.

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