R v Katsoulas [2008] VSCA 278

2 On the 19 March 2007 the appellant pleaded guilty in the County Court to a presentment containing one count of conspiracy (count 1), five counts of burglary (counts 2, 3, 4, 6 and 8), three counts of theft (counts 5, 7 and 9), and a discrete count of cultivating cannabis (count 10). The appellant was also dealt with in respect of a suspended sentence of six months' imprisonment which was restored. The appellant was sentenced to 20 months' imprisonment on the conspiracy count, 12 months on each burglary count, six months on each theft count, and one month in respect of cultivating cannabis. His Honour directed that four months on each of the five counts of burglary be served cumulatively with the sentence imposed on the count of conspiracy, and two months on each of the three counts of theft be served cumulatively with the sentence imposed on the count of conspiracy, resulting in a total effective sentence of three years and 10 months' imprisonment. His Honour added the restored term of six months imprisonment to the total effective sentence thereby increasing it to four years and 4 months' imprisonment. A period of three years was fixed before the appellant would be eligible for parole. The sentences are the subject of this appeal.

3 As s 31(6) of the Sentencing Act 1991 (Vic) requires the suspended sentence be served 'immediately'[1] and cumulatively, upon any other terms of imprisonment previously imposed,[2] the learned judge was correct to treat the restored sentence in the manner in which he did and to determine the non parole period by reference to a total effective sentence which included the restored sentence. No argument to the

contrary was advanced on the appeal. The same course had attracted no criticism in R v Aleksov.[3]

4 The conspiracy count related to 'premises of persons unknown.' It was based upon recorded discussions the appellant had with his co-offender between 28 January and 5 February 2005. The recorded conversations concerned the planned commission of a number of burglaries. His Honour noted that 'it is clear that particular premises were targeted because it was thought the owners would not be there and there was a probability of reasonable rewards. In fact that turned out not to be the case at some of those premises'.

5 The five burglaries, the subject of the substantive counts, occurred between the 28 January and 5 February 2005 during the same period as that covered by the count of conspiracy. The appellant's modus operandi was that he gained entry to the residential premises by jemmying or forcing doors and windows of the premises open. Once inside the premises the appellant generally ransacked the premises. The occupants of the premises were not present at the time of the burglaries. On three occasions he stole property such as jewellery, other items of value and in one case stole a safe containing several items of jewellery. The total value of the items stolen by the appellant was some $50 000. At the time the appellant committed these offences he was addicted to amphetamines and suffering from a number of medical conditions including depression. Following the appellant's arrest on the 10 February 2005 the police searched his premises and found 10 cannabis plants.

6 The appellant contended that the sentencing judge erred in his approach to the count of conspiracy and also failed to properly take into account the delay in the prosecution of these offences. The Crown has conceded both of these errors and accepts that the sentencing discretion must be re-exercised.

7 The sentencing judge approached the question of sentence on the basis that the conspiracy included the premises that were the subject of the particular counts of burglary. As the conspiracy count was expressed, it did not do so because the identity of the owner of each of those premises was known. The plea in mitigation had been erroneously conducted by both parties as though there was an overlap between the count of conspiracy and the substantive counts when there was none. But in fixing the sentence on the conspiracy count, his Honour stated that he did not include a penalty for the premises that were the subject of the substantive counts. In approaching the matter in this way, his Honour sought to give effect to the recognised sentencing principle applied in R v Hoar,[4] that sentences must not contain any element of double punishment so that where charged substantive offences are overt acts of the conspiracy, there must be a proportionate reduction of the sentences of either the conspiracy or the substantive offences.[5]

8 It was accepted that his Honour had been encouraged to impose a sentence on the conspiracy on the basis that the appellant and his co-offender had contemplated committing burglaries at other identifiable premises during the conspiracy period other than those covered by the substantive counts as well as unknown premises that they intended to burgle on the 9 February. The respondent acknowledged that the identifiable premises fell outside the terms of the conspiracy count and that it only applied to the contemplated burglaries on 9 February. For these reasons the respondent conceded that the sentence on the conspiracy was too high. It was submitted that one of the burglaries should be the base sentence on re-sentencing the appellant.

Failure to take into account delay as a factor in sentencing

9 There was a delay of approximately 26 months between the charging of the appellant, and his sentencing. The appellant relied upon this mitigating circumstance and pointed to his early acknowledgement of guilt, and his successful efforts at rehabilitation during the lengthy period between his apprehension and sentencing. The sentencing judge acknowledged the appellant's progress towards rehabilitation. In relation to the delay his Honour described the delay as 'longer than it ought to have been ... but unfortunately it is not exceptional in a case of this character and really plays no part in disposition'. His Honour made no further reference in his reasons to the delay, its impact on the appellant or his rehabilitation during that period.

10 Delay may have a mitigatory effect on sentence depending upon the length and reasons for the delay and its consequences for the offender. It will generally be a mitigating circumstance where the responsibility for it does not lie with the offender.[6] In R v Miceli[7] the Court considered a delay of 26 months that was not attributable to the appellant, to be an undue delay. The delay in this case was of a similar duration and was not attributable to the appellant. It was therefore undue. On that basis, proper sentencing principles dictated that the delay in the disposition of the charge should work in favour of the appellant.[8]

11 On arraignment the appellant demonstrated considerable and positive changes in his circumstances during the substantial time that had elapsed since he had been charged. He had taken positive steps towards overcoming his drug addiction, had undertaken a number of vocational training courses, was recovering from spinal surgery and had established a sound relationship with a new partner.

12 In criminal proceedings, prospective rehabilitation may warrant mitigation of sentence. Where rehabilitation is not just prospective, but has been shown to have advanced by the time of sentence, as it had been in this case, the focus moves from the need to facilitate rehabilitation, to the need to preserve the progress already achieved.[9] The fact that an offender has engaged in an effective process of rehabilitation during a lengthy period on bail and has remained within the community without further infringing the law, may be an important mitigatory circumstance as Maxwell P observed in R v Merrett, Piggott & Ferrari.[10] But as the respondent accepts, it does not appear from the reasons for sentence that the judge gave any of these consequences sufficient weight.

13 Undue delay may also lead to unfairness which requires some degree of compensation in the sentencing process.[11] In R v Idolo, Tadgell JA recognised that undue delay may result in additional punishment. His Honour stated that:

there is the natural anxiety occasioned to a person suspected of or charged with an offence until arraignment ... If this period is unduly long it may, and ordinarily will, be appropriate to reflect it by way of mitigation of the sentence to be imposed.[12]

14 The appellant had the impending criminal proceedings hanging over him for an unreasonable time particularly as he pleaded guilty at an early stage in and was probably aware that he would face imprisonment at the time of sentencing. In my view the undue delay in this case had the effect of additional punishment on the appellant.[13]

15 The sentencing judge erred in fixing the sentencing in respect of the conspiracy count. His Honour imposed a sentence on the count of conspiracy that is too high. In addition, the conspiracy count should not have been wholly cumulative and not used as the base count in sentencing. He failed to give any or sufficient weight to the delay between the charging of the appellant and his sentence. The sentencing judge should have taken into account the considerable steps the appellant had taken towards his rehabilitation and the fact that the undue delay constituted and element of additional punishment. The sentencing discretion having been re-opened, these matters should be given appropriate weight in the sentences to be imposed.

I would order that the restored sentence of six months (which must be served immediately), four months of the sentences imposed on each of counts 1, 3, 4, 6 and 8, and two months of the sentences imposed on counts 5, 7 and 9 be served cumulatively upon each other and the sentence imposed on count 2 making a total effective sentence of three years and eight months. I would fix a period of two years and three months before the appellant is eligible for parole.

17 I agree with Redlich JA that the appeal should be allowed for the reasons given by his Honour and the appellant be re-sentenced as proposed.

[1] Section 31(6)(a) thereby changes the order in which sentences would otherwise be required to be served pursuant s 15 of the Sentencing Act 1991 (Vic).

[2] Sentencing Act 1991 (Vic) s 31(6)(b).

[3] [2003] VSCA 44.

[4] [1981] HCA 67; (1981) 148 CLR 32.

[5] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1; Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362.

[6] See R v Miceli [1997] VSC 22; [1998] 4 VR 588; R v Schwabegger [1998] 4 VR 649; R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444; R v Nikodjevic [2004] VSCA 222.

[7] [1997] VSC 22; [1998] 4 VR 588, 591 (Tadgell JA).

[9] R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, [10] (Chernov JA); R v MWH [2001] VSCA 196, [18] (Callaway JA). Such as: Duncan v R (1983) 47 ALR 746. See also R v Miceli [1997] VSC 22; [1998] 4 VR 588; R v Idolo (Unreported, Victorian Court of Appeal, Phillip CJ, Tadgell and Ormiston JJA, 21 April 1998); R v Whyte [2004] VSCA 5; (2004) 7 VR 397.

[10] [2007] VSCA 1; (2007) 14 VR 392, [49].

[11] R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, [10] (Chernov JA); R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591 (Tadgell JA).

[12] (Unreported, Victorian Court of Appeal, Phillip CJ, Tadgell and Ormiston JJA, 21 April 1998) 12-13.

[13] R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392, [35] (Maxwell P).