R v Lewis [2003] VSCA 142

Court of Appeal (Vic)|2003-09-03|Before: CHARLES and CHERNOV, JJ.A. and ASHLEY, A.J.A.

CRIMINAL LAW - sentence - multiple counts of theft - burglary - trafficking in drug of dependence - total effective sentence of 5 years and 3 months with non-parole period of 2½ years - whether appellant sentenced for the wrong offence, or by reference to a circumstance which was not alleged or established against him - whether sentence vitiated by judge's reliance on uncharged offences - whether finding of disparity with co-offender vitiated by judge's reliance on inadmissible material - whether sentence manifestly excessive - offender aged 28, amphetamine abuser, minor criminal history, assistance given to investigators, plea of guilty, most stolen property recovered, evidence of attempts at rehabilitation - appeal allowed - appellant re-sentenced to total effective term of 4 years and 3 months imprisonment with non-parole period of 2 years.

Gary Lewis, the appellant, pleaded guilty to the following offences in the County Court at Bendigo on 18 October 2002:

Theft, 9 counts (Counts 1, 3, 5, 6, 7, 8, 9, 10 and 11).

Trafficking in a drug of dependence namely amphetamine, 1 count (Count 4).

The maximum sentences for the various offences were as follows:

Theft (s.74 Crimes Act 1958), 10 years' imprisonment.

Burglary (s.76 Crimes Act), 10 years' imprisonment.

Traffick a drug of dependence (s.71AC, Drugs, Poisons and Controlled Substances Act 1981), 15 years' imprisonment.

On 25 October 2002 the appellant was sentenced to the following periods of imprisonment: Count 1 - 15 months; Count 2 - 2 years; Count 3 - 6 months; Count 4 - 3 years; Count 5 - 18 months; Count 6 - 15 months; Count 7 - 12 months; Count 8 - 15 months; Count 9 - 12 months; Count 10 - 12 months; Count 11 - 12 months.

The sentencing judge ordered that 3 months of the sentence imposed on Count 1, 12 months of the sentence imposed on Count 2, 6 months of the sentence imposed on Count 5, 3 months of the sentence imposed on Count 6 and 3 months of the sentence imposed on Count 8 be served cumulatively upon each other and upon the sentence imposed on Count 4. The total effective sentence was thus 5 years and 3 months. A non-parole period of 2½ years was fixed. A declaration was made in respect of pre-sentence detention.

Now the appellant appeals against sentence. He does so pursuant to leave granted by Callaway, J.A. on 21 March 2003.

The grant of leave opened up five grounds of appeal.[1] Today, however, counsel for the appellant sought leave to rely upon grounds of appeal which were somewhat different in form and substance than those which were before Callaway, J.A. We heard argument upon the substance of the matter, postponing a decision whether to grant the appellant leave to amend his grounds accordingly. It is now convenient to set out the grounds which were argued.

"1. That the learned sentencing judge erred in finding that the appellant, at the time of his entry into the premises the subject of Count 2, had with him an offensive weapon. 2. That the learned sentencing judge erred in taking into account offending conduct which was not the subject of any count on the presentment. 3. That the learned sentencing judge erred in making a finding of fact as to the relative roles of the two accused which was unsupported by the admissible evidence. 4. That in all the circumstances the sentence imposed on each count was manifestly excessive, in that: (a) The learned sentencing judge gave insufficient weight to the appellant's personal circumstances and prospects of rehabilitation. (b) The learned sentencing judge gave too much weight to the principles of specific and general deterrence. 5. That the orders imposing cumulation were in error by imposing greater cumulation than the circumstances warranted. 6. That the learned sentencing judge erred in failing to apply appropriately the principles of totality and proportionality. 7. That the head sentence was manifestly excessive. 8. That the minimum term was manifestly excessive. 9. That in all the circumstances, and in reliance on the foregoing matters, the sentencing process miscarried."

The appellant's criminal conduct took place at between at earliest September 2001 and at latest 8 February 2002, and principally in Bendigo. Seven of the 11 offences were committed in January 2002. I turn to the circumstances of the individual offences.

* Count 1: A boat and engine, value undisclosed, were stolen from the yard of a mower and marine business on the night of 12-13 December 2001. The appellant at all times denied that he was present when the theft was committed, but eventually admitted obtaining possession thereof. The judge made no specific finding as to the nature of the appellant's participation.

* Counts 2 and 3: At about 9 p.m. on 30 January 2002 the appellant entered a building as a trespasser with intent to steal (Count 2). He stole household items including a washing machine, mattresses, bedding and a mirror (Count 3). The value of the stolen goods was $1,400.

* Count 4: The appellant eventually admitted trafficking amphetamines to close friends and associates between September 2001 and January 2002. There was specific evidence that he supplied a Mr Russell on multiple occasions. At the time of the appellant's apprehension Mr Russell owed $3,200 for drugs supplied.

* Count 5: In mid-January 2002 the appellant stole a caravan. Its value was $40,000. Particular planning was involved in the case of this offence.

* Count 6: In mid-January 2002 the appellant was party to the theft of work tools from the back of a utility. The tools included a welder. No evidence was given on the plea as to the value of the tools. The theft took place whilst the appellant was returning to Bendigo from a property at Boundary Bend where his associates had taken the caravan the subject of Count 5.

* Count 7: The appellant stole a trailer from a location in central Bendigo in the early hours of a January 2002 morning. This was apparently an opportunistic theft.

* Count 8: In late January 2002 the appellant participated in the theft of a second caravan, value $6,000, which was parked outside a residence in a Bendigo suburb.

* Count 9: On the night of 2-3 February 2002 the appellant participated in the theft of a motorcycle, value $10,000, in the North Bendigo area. There was dispute as to the extent of his participation.

* Count 10: Some time between early January and early February 2002 the appellant stole a second trailer, value undisclosed, from the environs of a Bendigo house. It was stored in the appellant's backyard and was repainted.

* Count 11: In mid-January 2002 a jet ski and trailer were stolen from the same premises as were pertinent to Count 1. The appellant, it seems, was not physically involved in the theft, but had some role in it.

Events subsequent to the offending conduct: recovery of stolen goods; police interviews

Much the larger proportion of the items that were stolen were later recovered - from a variety of locations, one as far afield as Boundary Bend. The exceptions were some of the household goods the subject of Count 3, and the caravan the subject of Count 8. Additionally, contents went missing from the caravan the subject of Count 5. But the appellant was not charged with any offence with respect thereto.

The appellant was interviewed on 8 February 2002 and again on 17 April 2002. On the first occasion he provided information which was mostly misleading concerning certain of the offences upon which he was later presented. He did admit trafficking amphetamines. On the later occasion he made substantial admissions concerning other offences, and corrected lies that he had told initially.

The learned sentencing judge described the various counts and the circumstances of the offences which they encapsulated. It is unnecessary to refer to her Honour's remarks in that connection save that, with respect to Count 2, she said this:

"Count 2 is a charge that at Bendigo on 30 January 2002 you entered as a trespasser a building with intent to steal and at the time you had with you an offensive weapon, namely a knife. In your first record of interview you said: `I organised it. I did it.' You then described how you effected the burglary by smashing a window, using a screwdriver, at approximately 9 pm."

Concerning the issue sought to be raised by proposed ground of appeal 2 the judge noted that:

"You agreed that you had been receiving a varied quantity of stolen goods over time, which you then intended to use to purchase amphetamines. You removed most of this property to a friend's property at Boundary Bend because, as you said, `I had word the police were going to get me anyway'."[2]

The appellant was not charged with any offence of receiving stolen goods.

The judge listed the following matters as having been put in mitigation:

* First, that the appellant had pleaded guilty, and, when debility from amphetamine addiction (and perhaps the effects of injuries sustained in a motor vehicle accident which occurred on 19 January 2002) had dissipated, had co-operated fully with the police.[3]

* Second, that the appellant, a man aged 28, had a minor past history of offending.

* Third, that the offences had been committed when the appellant was affected by an amphetamine addiction which was "completely out of control".

* Fourth, that the appellant had embarked upon a programme of rehabilitation which would be facilitated by a lengthy parole period.

* Fifth, that the offending conduct had been a serious but fairly short-lived crime spree. In those circumstances the principle of totality should strongly influence the sentencing process. Significant concurrency was warranted.

* Sixth, that the trafficking related to a middle-range drug - by contrast, for example, with heroin.

The judge specifically accepted the first of the matters put in mitigation. She did not fully accept the second of them. She said, concerning the appellant's prior history of offending, which was confined to July 1999 convictions at the Magistrates' Court at Bendigo for causing injury intentionally and unlawful assault, that:

" ... these offences cannot be ignored altogether; you do have convictions for offences relating to violence. Furthermore, they do indicate that having had exposure to criminal penalties and a non-custodial sentence, you have not been dissuaded from further criminal conduct."

Her Honour's reference to a non-custodial sentence was a reference to a nine months community-based order with which the appellant had complied. The offences in respect of which the order was made were said to have been alcohol fuelled, an assertion compatible with the terms of the order.

Concerning the third matter put in mitigation the judge, so far as I can see, made no specific finding. But it is implicit in her remarks that she accepted that the appellant had been amphetamine-dependent at relevant times.

Her Honour evidently accepted and acted upon the fourth matter advanced in mitigation. She rejected the fifth, to the extent that it proposed that the appellant's offences had simply been a short-lived criminal spree; and she accepted the sixth matter in a qualified way. Of her Honour's conclusions with respect to these last three matters, more later.

The judge made positive findings that the counts of theft exhibited these aggravating features:

* First, the thefts should not be characterised, on the whole, as opportunistic. One or both of the appellant and a co-offender, Nowell, appeared to have been fairly constantly on the lookout for likely opportunities.

* Second, the proceeds of thefts were rapidly concealed at a variety of locations.

* Third, thieving continued even whilst the appellant suspected that the police were closing in. At the time the appellant had decided to "clear out" his own residence.

* Fourth, the scale of the thieving was significant, and apparently targeted particular items - caravans, trailers, a motorbike and a jet ski.

The judge made this finding about the burglary which is the subject of Count 2:

"I accept that this did not involve the usual home invasion and was effectively facilitated by a conspiratorial agreement with the former occupants.

That finding is not challenged. Indeed, the appellant relies upon it. Implicit in the finding is the circumstance - it was common ground - that the premises the subject of the burglary were unoccupied at the time of entry.

Concerning Count 4, the judge made these findings:

* First, she did not accept that the appellant was devoid of a profit motive.

* Second, trafficking over a five month period was not a brief criminal spree.

* Third, the trafficked substance was a "so-called middle range drug of addiction"; and the appellant's trafficking appeared to be confined to friends and associates.

The judge drew a distinction in her remarks about the criminality of the conduct of the appellant and Nowell in respect of the offences with which they were each charged, or which arose out of the same thefts. She gave reasons for drawing that distinction. It is presently unnecessary to set out her remarks in that connection.

Her Honour concluded that general deterrence was particularly pertinent in the case of the count of trafficking; and specific deterrence must be reflected in the sentences because "there is every indication that your thieving had become a way of life".

Her Honour concluded that the appellant's age made rehabilitation important. She took into account, as she said, the fact that the appellant had served his pre-sentence time without incident, and that he appeared to have "made efforts to seek further education and rehabilitation for [his] drug addiction".

Concerning the non-parole period which should be fixed, the judge said this:

"You will ... receive a lower minimum term than would ordinarily be the case, having regard to the mitigating factors to which I have referred."

Concerning totality and cumulation her Honour said this:

"In applying the totality principle the court has to ensure that the aggregation of sentences appropriate for each offence is a just and appropriate measure of the total criminality involved and will still not result in a sentence which overall could be regarded as crushing. Accordingly, a number of concurrencies will take effect by operation of law. However, I consider that it is appropriate to order some partial cumulation, particularly having regard to the serious offences of drug trafficking and burglary and the extensive and significant thefts committed by you."[4]

Specific error is alleged. The gist of the complaint is that the judge sentenced the appellant for a serious offence which was not alleged against him; or that the sentencing process was infected by consideration of an irrelevant circumstance which, in any event, was not established.

Her Honour's description of Count 2 in the passage which I have cited at [11] was wrong. It was a description of the offence of aggravated burglary.[5] The appellant was not charged with that offence. He was charged with burglary. The maximum penalty for aggravated burglary is 25 years' imprisonment. The maximum penalty for burglary is 10 years' imprisonment.

Despite, however, her Honour's description of Count 2 in terms of the offence of aggravated burglary, she had earlier said, accurately, that the appellant was charged with burglary for which the maximum sentence was 10 years' imprisonment. There was thus an apparent inconsistency in the judge's sentencing remarks.

It may be said that the judge only sentenced the appellant to two years' imprisonment on Count 2; and that this was compatible with her acceptance that this was not a serious example of the offence of burglary. On the other hand, the maximum penalties for burglary and theft were the same; yet the sentence imposed on Count 2 was, the trafficking offence aside, the heaviest sentence imposed. That is very difficult to understand when some of the thefts involved property of substantial value; property which sometimes had not been recovered. It is also very difficult to understand when it is remembered that the particular offence consisted of entry into a premises known by the appellant to be unoccupied, the entry being in pursuance of some agreement with the now-departed occupants. Note also the judge's reference to "the serious offences of drug trafficking and burglary", and the fact that of all the sentences which were part cumulated, cumulation was greatest in the case of Count 2.

All in all, and despite the submission of counsel for the respondent that the judge's remark, noted at [11], was a slip, and immaterial to the sentence imposed, I find it impossible to escape the conclusion that her Honour did sentence the appellant on a false basis: either that he had been presented on and pleaded guilty to the more serious offence of aggravated burglary, an offence carrying a higher maximum penalty than the offence upon which the appellant was actually presented; or else that he had possessed in fact an offensive weapon which aggravated the offence - although at no stage, whether by the presentment or otherwise, had the Crown alleged such a case against him. In the circumstances, in my opinion it is necessary to set aside the sentence on Count 2. If that view prevails, the appellant must be sentenced afresh.

Whilst it is strictly unnecessary to do so, I should say something about proposed Grounds 2-9. I begin with Ground 2. It concerns the remark made by the judge which I have earlier noted at [12]. The appellant was not charged, nor was he to be punished, for handling stolen goods. If the judge had taken that matter into account in passing sentence, in effect as an aggravating circumstance, the sentence would be vitiated. Here, however, I incline to the view, despite what might be said to have been an unfortunate passage in the judge's reasons, that the passage was really directed to a different point - that is, one of the aggravating circumstances of the thefts which her Honour mentioned, and which I have noted at [18]; and further, that handling stolen goods was not taken into account in the sentencing exercise.

Nowell was presented on a number of counts of theft; and 2 counts of handling stolen goods. The various counts arose out of transactions in which the appellant was charged with theft. In the cases where each of the appellant and Nowell was charged with theft the appellant's sentences were, somewhat heavier. In cases where the appellant was charged with theft and Nowell was charged with handling, Nowell's sentences were the heavier. That sentencing pattern appears to me to be inconsistent with the judge loading up to the appellant's sentences for theft by reason of his handling stolen goods on other, uncharged, occasions.

This proposed ground is an attempt to raise, by way of a submission that the judge acted in part upon inadmissible material, a parity argument which Callaway, J.A. did not regard as reasonably arguable on the material which was before him. The material placed before the Court today was quite different. In my view, it is plain that the judge treated as a matter going to the greater responsibility of the appellant a matter which was simply not before her by way of admissible material. But I am not persuaded this circumstance, one amongst a number, detracts from the conclusion which the judge reached as to the relative responsibilities of the appellant and Nowell. If it mattered, I would not determine the appeal favourably to the appellant upon the proposed Ground 3.

These grounds were argued together for the appellant and can be so considered.

In my opinion the sentence imposed on Count 2 bore no reasonable relationship with the sentences imposed on a number of the other counts; and should be accounted outside the available range. Other than that, I am not at all satisfied that any of the individual sentences should be characterised as manifestly excessive. In my opinion the judge was well-entitled to conclude that the appellant had engaged in a course of criminal conduct which was lengthy and serious in the case of the trafficking count; and which was quite sustained over a period of a month or so in the case of the other offences of dishonesty. Her Honour's conclusion that there was every indication that thieving had become a way of life for the appellant was not attacked. Any attack would have been difficult, albeit that I should have hesitated to make such a finding on the basis of six weeks offending by a 28-year-old drug-affected man who had a negligible criminal history. Neither was there attack upon the judge's finding that the thefts exhibited the aggravating features which she described. There were matters going in mitigation. They were recognised by the judge. In my view the judge's rejection of certain matters raised by way of mitigation could not be impugned. It might be said, with some force, that her Honour was disposed to make too much of the appellant's past criminal history. But that is a matter of degree; and in the end the judge said only that the prior offences could not be ignored altogether.

The complaint that the judge did not have proper regard to the totality principle, another aspect of the complaint that the sentence imposed was manifestly excessive, really focuses upon the orders for cumulation. It is certainly true that Counts 1, 2, 5, 6 and 8 did involve discrete criminal conduct. The same might be said, however, of Counts 7, 9, 10 and 11. Count 3 closely interrelated with Count 2, and it is understandable why there should have been no cumulation of any part of the sentence imposed on Count 3.

The judge did not explain why she ordered some cumulation in respect of certain sentences and not others. So, she ordered cumulation in respect of offences committed on or between:

but not in respect of offences committed on or between:

When the spread if dates is considered, and as well the nature of the offences, it seems to me readily understandable, having regard to the totality principle, that some cumulation should have been ordered in respect of the sentences imposed on:

* Count 1 - because it was the earliest instance of dishonest conduct.

* Count 2 - because it was a different offence to the other offences of dishonesty.

* Count 5 - because it was an offence with a distinct element of pre-planning.

* Count 8 - because the stolen property, a caravan, was not recovered.

These are four of the five sentences on which an order for cumulation in fact was made. On my analysis, Count 6 is the odd man out; but I would not say that the judge necessarily erred in that connection.

The other aspect of cumulation is its extent. The effect of cumulation overall was to create a head sentence of five years and three months when the heaviest individual sentence, for a quite distinct type of offence, was three years. The extent of individual cumulation was:

The largest proportionate cumulation was in respect of the sentences imposed on Counts 2 and 5. Count 2 related, of course, to the burglary; and Count 5 related to the pre-planned caravan theft, which was described by counsel for the appellant in his plea as "far and away the most serious" theft.

43 In my opinion, viewed overall, the offences in which cumulation of sentence was ordered, and the extent of cumulation, was readily explicable; and could not be said to have led to an outcome offending the totality principle. That conclusion is subject to one exception - the cumulation ordered in respect of Count 2. To my mind it was evidently excessive, and not explicable, contrary to the submission of counsel for the respondent, by the level of planning of the offence. In consequence, the sentencing exercise miscarried. Whilst there is no point in speculation, it is difficult to ignore the fact that this was the count the nature of which was misdescribed by the sentencing judge.

I should say something shortly about the non-parole period which the judge fixed. It was in fact a low proportion of the total effective sentence, for reasons well explained by her Honour. In my opinion it could not be complained, with any substance, that the non-parole period, as a proportion of the total effective sentence, was inappropriate in all the circumstances.

In light of the specific error concerning Count 2, and independently by reason of the sentence imposed on that count and the extent of cumulation thereof - those matters impacting upon the total effective sentence - I would first grant the appellant leave to amend his grounds of appeal in accordance with the notice dated 1 September 2003; and then allow the appeal.

I would impose a sentence on Count 2 which reflects what I consider was the relatively minor nature of the particular offence having regard to the revealed circumstances. I would cumulate a modest part of that sentence. I would not cumulate any part of the sentence imposed on Count 6. In the event, I would re-sentence the appellant to imprisonment as follows: Count 1, 15 months; Count 2, 15 months; Count 3, 6 months; Count 4, 3 years; Count 5, 18 months; Count 6, 15 months; Count 7, 12 months; Count 8, 15 months; Count 9, 12 months; Count

10, 12 months; Count 11, 12 months. I would cumulate three months of the sentence imposed on Count 1, three months of the sentence imposed on Count 2, six months of the sentence imposed on Count 5 and three months of the sentence imposed on Count 8 upon each other and upon the sentence passed on Count 4. The total effective sentence would then be 4 years and three months. I would fix a non-parole period of 2 years. That proposed disposition involves rejection of the submission of counsel for the appellant that on a re-sentencing his client should be sentenced to time served.

The Court orders that the appellant be granted leave to amend the grounds of the notice of appeal in accordance with the notice dated 1 September 2003. The appeal is allowed and the sentence imposed below is set aside. In lieu thereof the appellant is re-sentenced to the following terms of imprisonment -

The Court makes the following orders as to cumulation:

That 3 months of the sentence imposed on count 1, 3 months of the sentence imposed on count 2, 6 months of the sentence imposed on count 5 and 3 months of the sentence imposed on count 8 be served cumulatively upon each other and upon the sentence imposed on count 4.

The new total effective sentence therefore is 4 years and 3 months' imprisonment. The Court fixes a non-parole period of 2 years.

The Court declares that 573 days be reckoned as the period of imprisonment already served under the sentence and directs that this declaration be noted in the records of the Court.

[1] They were before his Honour only in the form of proposed amended grounds of appeal.

[3] Implicit in this submission was counsel's acceptance that his client had not been frank when first interviewed. Indeed, as I have already observed, that was the case.

[5] See s.77(1)(a) of the Crimes Act.

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