R v Mercieca [2004] VSCA 170

The offences to which he pleaded guilty were count 1, theft of a motor vehicle; count 2, burglary; count 3, theft of cigarettes; count 4, handling.

Court of Appeal (Vic)|2004-09-10|Before: WINNEKE, P., ORMISTON and CHARLES, JJ.A.

Criminal law - Sentence - Principle of parity in sentencing discussed - Prisoner standing for sentence almost one year before co-offenders - Appeal allowed.

The appellant was one of a band of four men who, on 29 July 2001, embarked upon an audacious escapade of burglary and stealing cigarettes in a very professional fashion from factory premises in Notting Hill. The burglars were caught "red-handed" by the police and, upon inspecting the appellant's home following his apprehension, a stolen television set was recovered which led to an additional charge on his presentment of "handling". The appellant, like his confreres in the escapade, was a mature-aged man who had several previous convictions which included the conviction for an armed robbery and other offences of dishonesty. Nevertheless, it is apparent from the volumes of transcript which the Court has read, that each of the offenders had things to be said about him both for and against, including the appellant who was obviously a good worker in regular employment and a man who had been free from trouble for some seven years before he joined in these offences.

The offences to which he pleaded guilty were count 1, theft of a motor vehicle; count 2, burglary; count 3, theft of cigarettes; count 4, handling.

The first theft count related to the stealing of a Toyota truck which was parked in a yard next to the Notting Hill factory where the burglary was accomplished. The theft itself was accomplished in a professional fashion using bolt cutters and a slide hammer. Following the vehicle's theft, the fence around the factory was cut with bolt cutters and the stolen truck was driven into the factory premises adjacent to one of the doors of the factory. The crime of burglary was achieved by breaking open the factory doors using an angle grinder following which entry to the factory was gained. The second count of theft related to the stealing of the cartons of cigarettes inside the factory which were the property of Philip Morris and which the judge said in the course of her reasons were worth in the vicinity of $150,000; but which (and this occurred months after the appellant was sentenced) was said to be worth about $75,000 on the applications relating to the co-offenders. As I have said, count 4 was a handling offence which related to the possession of the recently stolen television set.

The appellant, in contrast to his three accomplices - whose names were Carew, Gaylard and Hassan - pleaded guilty to the counts alleged against him at the earliest opportunity, namely during the committal proceedings in November 2002. His co-offenders persisted in failing to admit their guilt (or in the case of Hassan, specifically denying it) for another 16 months; that is, down to the date of the trial which was listed for hearing. They had been implicated in other offences and it would appear that they or their legal representatives were negotiating with the prosecuting authorities for a presentment which suited the respective interests of their clients.

The consequences of these events resulted in a familiar sentencing problem. Because the appellant had confessed his guilt at an early stage, he stood for sentence nearly a year before his co-offenders. The problem of which I speak is that an early admission of guilt - which ordinarily ought to be a powerful mitigating factor in the sentencing process - tends to become blurred or lost in the severance of proceedings against the respective offenders.

That, in turn, creates the potential for differing views being taken by different judges of sentencing facts which are common to all co-offenders. (Cf R. v. Nikodjevic[1]) As Gummow, J. pointed out in Postiglione v. R.[2], problems can arise in the sentencing of co-offenders:

" ... when they are sentenced by different judges taking different views as to the relevant culpability of co-offenders in respect of the offences."

At the end of the day the appellant was sentenced in the following way: on count 1, theft of the truck, one year imprisonment; on count 2, the burglary, four years' imprisonment; on count 3, theft of the cigarettes, four years' imprisonment; on count 4, handling, six months' imprisonment. The sentencing judge cumulated the six months imposed on count 4 on the four years imposed on counts 2 and 3. The total effective sentence was therefore four years and six months. Her Honour directed that the appellant serve three years before becoming eligible for parole.

For the reasons which I have earlier mentioned, the co-offenders, Carew, Gaylard and Hassan, did not stand for sentence until nearly a year after the appellant. Each was charged with offences arising out of the Notting Hill burglary, but there were extra charges alleged against them in respect of that burglary beyond what had been preferred against the appellant. Those extra charges alleged that they had each "attempted to steal" a Mazda van before the theft of the Toyota truck; and that each had gone to the premises "equipped for burglary". Furthermore, there were six extra charges alleged against Carew arising from an entirely separate but similar burglary on a different date, whilst there were two extra "handling" charges alleged against Gaylard, one of which was a serious charge resulting from his possession of tens of thousands of dollars worth of stolen pharmaceuticals.

The judge who sentenced the co-accused was made aware of the sentences which had been imposed upon the appellant, and said that he would seek to achieve "parity" in sentencing for the Notting Hill offences. He was, of course, faced with the different problem of achieving such parity in the face of the conflicting sentencing principles of totality and proportionality when sentencing prisoners who were standing for sentence in respect of more crimes than the appellant had in fact stood for sentence.

In the result he imposed the same head sentences as had been imposed upon the appellant in respect of each of the co-offenders for the three offences of theft of truck, the burglary and the theft of cigarettes in the Notting Hill escapade; that is, one year, four years and four years. Those sentences were imposed on the basis that the value of the cigarettes stolen was approximately 50 per cent of the value ascribed to them by the judge who was sentencing the appellant. In respect of Hassan, the judge imposed sentences of six months on each of the additional charges of attempting to steal the Mazda van and "going equipped for burglary". However, despite the fact that Hassan had been convicted and sentenced on two extra charges in respect of the Notting Hill robbery than had the appellant, the judge ordered no cumulation; thus leaving Hassan with the total effective sentence of four years.

Likewise in respect of Gaylard, the judge imposed the same head sentences on the five "Notting Hill counts" as had been imposed on Hassan; but also sentenced him to three years on the pharmaceutical handling charge and six months on the lesser handling charge; but cumulated 18 months of those two sentences on the four years imposed for the burglary. Thus Gaylard's total effective head sentence was five years and six months.

Carew presented yet another sentencing problem because he was at that stage standing for sentence on 11 counts, of which only the last five related to the Notting Hill burglary; but the other six were for the unrelated and earlier burglary. He received the same head sentence for the Notting Hill counts as had been imposed upon Hassan and Gaylard (and, as to three of them, upon the appellant), but two years of the sentence on that burglary charge were cumulated upon the four years and six months which had been imposed in respect of the earlier burglary counts. Thus Carew's total effective head sentence was six years and six months.

The judge sentencing Hassan, Gaylard and Carew then directed non-parole periods respectively of two years, three years and three-and-a-half years. Thus it can be readily seen that Hassan received a total effective sentence of four years and a non-parole period of two years for his part in the Notting Hill burglary (in respect of which he was charged with five offences), whereas the appellant had received a total effective sentence of the same amount (but in respect of three charges) for his part in the same burglary, but had received a non-parole period which was 50 per cent greater than that given to Hassan. Gaylard had likewise received a total effective sentence in respect of five Notting Hill offences of four years; but despite the fact that he had received sentences for the extra handling offences of three years and six months respectively (of which 18 months was cumulated), he received precisely the same non-parole period as the appellant, namely three years. And, similarly, Carew had received the same head sentences for the five charges arising from the Notting Hill burglary as had the appellant; although two years of those sentences were cumulated upon the six separate charges which had been preferred against him from earlier and equally sophisticated offending. His non-parole period was set at three-and-a-half years, namely, only six months longer than that received by the appellant.

Leave to appeal was given to the appellant by a judge of this Court who professed, in short reasons, that when one had regard to the appellant's level of involvement in the offences alleged against him and his very early plea of guilty, the sentences could be arguably manifestly excessive. However, on this appeal the emphasis has been on what has been said to be the marked disparity between the sentences (both as to head and minimum) imposed upon the appellant and those imposed upon his co-offenders. In the very peculiar circumstances of this case, I think that there is an underlying and arguable basis for contending that there is such a manifest disparity between the minimum sentences imposed upon the applicant and those upon his co-offenders, and such a lack of disparity in the head sentences, as to engender a justifiable sense of grievance, by giving the appearance - in the mind of the objective observer - that justice has not been done (cf Lowe v. R.[3]; Postiglione v. R. (supra) at 323 per Gummow, J.; R. v. Taudevin[4]) The principles for which these authorities stand was expressed in a slightly different way by Brennan, J. as long ago as 1978 when he said in his judgment in Lovelock v. R.[5]:

"But if there be differentiating circumstances which favour the case of an appellant from the case of another offender who received a comparable sentence in respect of the same offence, the lack of disparity between the sentences bespeaks an error of some kind."

I am fortified in my view that the principles of which I can speak can be justifiably applied in the case of the appellant in the very special circumstances of this case by the approach of Mr Hillman for the respondent who, with customary fairness, agreed that there "was a disparity".

In my view, the disparity here between the sentences imposed upon the appellant and his co-offenders bespeaks unfairness and error because it paid no account to the powerful mitigating factor that the appellant had been prepared to enter a plea of guilty so early in the process. When one compares his sentence with those imposed upon his co-offenders, it does appear that he has got no credit at all for that powerful mitigating factor - indeed, the co-offender most comparable (Hassan) has a non-parole period one year lower than the appellant.

In the circumstances of this appeal I want to issue this injunction. There will be few cases where an appellate court can legitimately interfere with the sentence on what are loosely called "parity principles". Those principles are the product of the court's desire to achieve equal justice which, in turn, aspires to the notion that "like should be treated alike - but if there are relevant differences, due allowance should be made"[6]. However, those principles recognise that sentencing is itself an imprecise art in which judges are called upon to exercise discretions in respect of principles which are conflicting in their application and will almost inevitably produce disparity between sentences imposed, even in the case of co-offenders. Thus before an appellate court can intervene on the basis of disparity, or lack of it, the authorities recognise that that disparity, or lack of it, must be "marked" or "manifest" and such as to produce a legitimate and justifiable sense of grievance in the objective observer.

It is, however, my view that the special circumstances of this case do require the appeal to be allowed in order that the disparity, or lack thereof, of which I have spoken, and identified, can be corrected. I would, accordingly, set aside the sentences imposed upon the appellant below and, in lieu thereof, order that the following sentences be substituted: count 1, theft of motor vehicle, one year; count 2, burglary, three years and six months; count 3, theft of cigarettes, three years and six months; count 4, handling, three months. I would direct that the three months imposed on count 4 be cumulated on the three-and-a-half years imposed on count 2. The total effective sentence therefore would be one of three years and nine months. I would order that the appellant serve a period of two years of that sentence before becoming eligible for parole.

The Court raised with counsel the issue relating to the cancellation of the appellant's licence. In the course of the sentencing process below the sentencing judge took the view that she had no option but to cancel that licence even though I think that she would have been disposed not to do so having regard to the fact that the appellant relies upon his licence for his living, he being a heavy vehicle driver, and whose employer had intimated to the court that he would be willing to re-employ him after he had served such terms as were imposed upon him. I think her Honour was wrong in coming to the conclusion that she was bound to cancel the appellant's licence, which she did without more, and without imposing any period of disqualification before it could revive.

Mr Hillman tells us that in those circumstances the period of disqualification set by the Road Safety Act is one of three months. I note, however, that the judge who sentenced the co-offenders took the view (and I think correctly) that under s.89(4)(a) of the Sentencing Act 1991 he was entitled to order that the co-offenders' licences could be suspended and he suspended them for periods which, as I recollect it, were co-terminous with the non-parole periods which he had ordered.

I think in these circumstances I would also be prepared to set aside that part of her Honour's orders cancelling the appellant's licence and in substitution therefor order that the licence or licences held by the appellant be suspended for the two-year period which I would order as his non-parole period. That licence suspension will therefore date from 12 May 2003 and will end with the expiration of his non-parole period.

The offences revealed by the evidence on this appeal were serious and executed professionally and with careful deliberation, as the reasons of the President demonstrate. They were particularly bad examples of burglary and theft involving property of considerable value, in which the appellant played a critical role and which was carried out purely for greed by a person with an extensive record over many years for robbery, theft and the like. The appellant, as well as his co-offenders, deserved condign punishment.

It is remarkable, therefore, that the Court should find itself asked to intervene, not because of any errors made by the learned judge at the sentencing hearing, but because of a so-called error of fact (discovered later) as to the value of the cigarettes stolen and, more importantly, because a reasonable observer might conclude that the sentences would engender a justifiable sense of grievance on the part of the appellant, to the extent that the precepts as to parity and disparity in sentencing, laid down by the courts, have been broken by reason of sentences handed down almost 11 months later by another judge on pleas by the other three offenders. Moreover, that judge himself consciously and explicitly attempted to apply the precepts to those offenders' pleas. The latter judge may have been wrong (or he may have been right on the voluminous material placed before him), but his erroneous sentences (if they were such) are by law to be treated as affecting the earlier sentences imposed on the appellant.

24 Whether one judge or the other was ultimately right in their factual conclusions as to the value of the cigarettes is probably of little consequence in the long run (though the difference was referred to by the later judge), but the judge sentencing the appellant had no other evidence on that subject before her and no attempt has been made in this Court to lead "new" evidence to establish the error.

As to parity and disparity I am, by authority, compelled to agree in the reasoning and conclusions of the President that, by an artificial comparison, the judge's sentences were infected by error, as argued on behalf of the appellant, in that they "offended parity", so that the sentences should be reduced in the manner suggested by the President. So be it, but I cannot be persuaded that the original sentences did not fit the crimes or that they did not reflect the criminality of the appellant as an offender.

I agree with the President and express my sympathy with the reservations stated by Ormiston, J.A.

The formal order of the Court will be as follows.

The sentences imposed below are set aside and in lieu thereof the following sentences are imposed:

The Court directs that the three months imposed on count 4 be cumulated upon the three-and-a-half years imposed on count 2. The total effective sentence will therefore be one of three years and nine months.

The Court orders that the appellant serve a period of two years of that sentence before becoming eligible for parole.

The Court also sets aside the orders made by the learned judge cancelling the appellant's licence without further qualification and in lieu thereof the Court will order that any licence held by the appellant to drive a motor vehicle is to be suspended for two years commencing upon 12 May 2003.

The Court declares that the appellant has served 488 days' pre-sentence detention in respect of the sentences which we have imposed and the Court directs that that declaration and its details be entered in the records of the Court.

[4] [1996] VICSC 7; [1996] 2 V.R. 402 at 404 per Callaway, J.A.

[6] Per Mason, C.J. in Lowe v. R. (supra) at 610-611.

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