R v Renzella [1999] VSCA 85

Court of Appeal (Vic)|1999-05-20|Before: BROOKING, BATT and CHERNOV, JJ.A.

Criminal law - Sentence - Non-parole period - Manifestly excessive - Applicant sentenced by different courts for separate offences - Total effective sentence - Appropriate head sentence for each offence - Cumulation - Concurrency.

The applicant, who is now aged 54, pleaded guilty in the County Court on 7 August 1998 to a charge of conspiracy to cheat and defraud (the first offence). He had been sentenced earlier (the first sentence) on 12 February 1997 in relation to unrelated charges, to six years and three months' imprisonment with a non-parole period of four years and three months. On 14 August 1998 he was sentenced (the second sentence) in relation to the first offence to two years' imprisonment to be served cumulatively upon the first sentence. Thus, the total of the two sentences amounted to eight years and three months' imprisonment. His Honour also effectively extended, in accordance with of the , the non-parole period that was fixed by the first sentence, to four years and nine months.

By notice dated 26 August 1998, the applicant seeks leave to appeal against the second sentence on the ground that it is manifestly excessive.

The circumstances which culminated in the sentence of 14 August 1998 are a little complicated and I shall set them out below in chronological order.

On 11 December 1992, the applicant was charged with theft of a number of motor vehicles and was released on bail. Those charges were later subsumed in the first count. It was alleged that between 17 September 1991 and 27 November 1992, the applicant and others, including John Gerald Sven Bantjes ("Bantjes"), conspired together and with others to cheat and defraud by falsely representing that a company which traded as Southern Commercials, had full title to all motor vehicles which it offered for sale and that it was able to pass good title to anyone who ordered or purchased a motor vehicle from it. The conspiracy charged involved the theft and re-sale of 59 motor vehicles, most of them Toyota Landcruisers. The applicant and his co-accused either stole or procured stolen vehicles, altered the engine and chassis numbers of those vehicles, removed their number plates and changed their appearances. The value of the vehicles stolen exceeded $1m. Four such vehicles were recovered by investigating police before they could be re-sold, but the proceeds from the sale of the others disappeared into what the judge described as the "financial morass" of Southern Commercials' business. Consequently, financial loss was suffered by the owners of those vehicles or by their insurers. The applicant took an active part in these operations including the theft of a large number of those vehicles. It was common for him to drive around in his car with one of his co-accused, Bantjes, until a model of a Landcruiser that was desired was located. Once the car was selected, the applicant would keep watch while his co-accused broke into the vehicle and drove it back to Southern Commercials where it was processed in the manner described.

Whilst on bail, the applicant committed further offences of trafficking in cannabis and conspiring to cheat and defraud (the second and third offences). The trafficking occurred between 1 April 1993 and 4 November 1993. During that period the applicant, Bantjes and another person leased a factory at Highett which was divided into two interconnecting parts. At the back of the premises, they grew cannabis and at the front, Bantjes conducted a legitimate panel-beating business. The crop that was initially grown was unproductive and only a few ounces were sold. Another crop was planted and was maturing when it was discovered. The learned sentencing judge who imposed the first sentence concluded that the value of the crop was substantial and, on one view, was of a street value of approximately $2m.

It seems that the failure of the first crop caused cash shortage to the applicant and this led to the commission of the conspiracy between the applicant and Bantjes to steal Toyota Landcruisers, strip them at the Highett factory and sell the parts. The modus operandi was the same as that applicable to the first offence. Some 23 Landcruisers were stolen and stripped; the value of the stolen vehicles was in the vicinity of $400,000.

On 4 November 1993, the applicant was charged with the second and third offences. He was refused bail. It was not until 13 September 1994 that he was granted bail by which time he had spent 314 days in custody since 4 November 1993. It is to be noted that he was in custody during this period in respect of both sets of offences so that s.18(1) of the Sentencing Act as it then stood did not apply.

The applicant's first trial in relation to the first offence was held between 17 July and 4 August 1995, at the conclusion of which the jury found him guilty. On 15 August 1995, the applicant was sentenced in relation to that conviction to four years' imprisonment with a non-parole period of two-and-a-half years. On 18 August 1995, his Honour re-sentenced the applicant, reducing the head sentence by 45 weeks, to three years and seven weeks on account of the 314 days that had been spent by him in detention. His Honour also reduced the non-parole period to one year and 33 weeks.

The applicant applied for leave to appeal against that conviction and sentence. The Director of Public Prosecutions cross-appealed against the sentence on the ground that the trial judge erred in reducing the head sentence and the minimum sentence pursuant to s.18(1) of the Sentencing Act as it then stood by the period referred to earlier. His argument was that since s.18(1) had no application, the reduction so made by his Honour was impermissible. On 6 September 1996, the Court of Appeal granted to the applicant leave to appeal, allowed the appeal against the conviction and ordered a new trial. The judgment of the Court is reported in R. v. Renzella [1997] 2 V.R. 88.

In relation to the cross-appeal of the Director, the Court of Appeal applied R. v. Heaney (unreported, Court of Appeal, 27 March 1996). The Court of Appeal said, at 98, that where s.18 applies, the pre-sentence detention is to be reckoned as a period of imprisonment already served under the sentence and a declaration is to be made to that effect (unless the court orders otherwise). Pre-sentence detention to which s.18 does not apply, however, is also to be taken into account as a matter of justice in the exercise of the court's discretion and should ordinarily be taken into account at the first opportunity and not left to the court imposing a later sentence. Hence, the cross-appeal was dismissed.

On 3 February 1997 (before the applicant's re-trial in relation to the first offence), the applicant was found guilty by a jury in respect of the second and third offences. As I have already mentioned, on 12 February 1997, the applicant was sentenced to five years' imprisonment on each count. It was ordered that two-and-a-half years in relation to the count which dealt with conspiracy to cheat and defraud, be served cumulatively with the count which was concerned with trafficking. Consequently, the applicant was sentenced to a total of seven-and-a-half years' imprisonment from which the trial judge deducted 412 days (being rounded off at 15 months), thereby fixing a total effective sentence of six years and three months' imprisonment. The non-parole period was fixed at four years and three months. His Honour also made a sentencing declaration regarding pre-sentence detention for the purposes of s.18(1) of the Sentencing Act.

On 7 August 1998, at the outset of the re-trial in relation to the first offence, the trial judge ruled that similar fact evidence from the earlier trial and conviction could be adduced in the re-trial. Following that ruling, the applicant pleaded guilty to the count relating to the first offence.

I have already mentioned that on 14 August 1998, having heard a plea in mitigation made on behalf of the applicant, his Honour sentenced him to two years' imprisonment to be served cumulatively upon the first sentence. Thus the total of the first sentence and the second sentence was eight years and three months' imprisonment. A new non-parole period of four years and nine months was fixed by his Honour.

It will be recalled that the total effective (first) sentence imposed on the applicant on 12 February 1997 was reduced by 15 months on account of the applicant having served 314 days by way of pre-sentence detention. If that period were to be disregarded, the true head (first) sentence imposed on the applicant on 12 February 1997, would be seven-and-a-half years. Thus, if the two-year period of imprisonment imposed on the applicant by the second sentence were to be added to the first head sentence, the total sentence so imposed on the applicant in respect of the three charges would be nine-and-a-half years' imprisonment.

It is convenient to mention at this point that although the applicant had a number of prior convictions, they related to offences which took place principally in the 1960's. The only conviction of any consequence was recorded in 1973. It involved the substitution of a race horse at Casterton. This offence became known as the Royal School conspiracy, for which the applicant was sentenced to a term of imprisonment.

The sentencing judge (who imposed the second sentence) summarised the applicant's personal background. His parents came to Australia from Italy in 1926. The applicant was born on 17 August 1945 and when he was eight or nine years of age, his parents separated. Shortly thereafter, because of this parental disruption, the applicant spent some time in boys' homes. Ultimately, however, in order to help his mother to raise a family of seven children, he went out selling papers and taking on other work. The applicant had a good work and business record until the collapse of his business in 1992. Having lost his business and therefore access to funds from it, the probability is that the applicant committed the offences in order to finance his interest in horses and gambling. (It should be noted that the judge who imposed the first sentence rejected submissions put to him by counsel on behalf of the applicant that the applicant had the intention of rehabilitating himself and that he had shown remorse.)

The second sentencing judge also noted that since 27 November 1992, the applicant had spent a considerable period in custody. On his calculations, the period was 1,269 days. His Honour found that the applicant suffered much from such detention. For example, because he had matters pending, he was unable to be classified for an open prison which normally would have been the case following his initial conviction. As things turned out, he spent 18 months in Pentridge, six months in D Division and the rest in B Division. Further, because of various court appearances and commitments, he spent something like two months overall in police cells in over-crowded and appalling conditions. Whilst in prison he developed a skin complaint which causes him a great deal of discomfort as well as asthma.

In considering the sentence that was to be imposed on the applicant, his Honour was guided by the sentence that was imposed on him on 18 August 1995 and which was set aside on appeal. But his Honour also recognised that the material before him was not the same as that before the other judge and, in particular, that the applicant was entitled to a sentencing discount because he had shown remorse by pleading guilty on 7 August 1998.

In constructing the second sentence, his Honour had regard to what effective sentence would have been imposed had the two sets of offences been on the same presentment and tried at the same time. In so analysing the matter, his Honour accepted that there was a limit to what could be properly added to the first sentence in order to achieve an appropriate total effective sentence for the three sets of offences. In that regard, he accepted the Crown's submission that only a slight addition should be made to the second sentence to achieve such a total or global effective sentence. It was in that context that his Honour fixed the head sentence of two years' imprisonment for the offence covered by the first count and ordered that it be served cumulatively on the first sentence. As I have mentioned before, his Honour also effectively imposed a further non-parole period of six months.

Thus, it seems that his Honour approached the fixing of the head sentence in the following way. He first considered what would have been the appropriate total effective sentence if the three offences had been the subject of one presentment. He then deducted from that notional sentence the total effective period of the first sentence and thus arrived at the head sentence of two years' imprisonment in relation to the count pertaining to the first offence.

His Honour did not approach the determination of the head sentence by deciding at the outset on the appropriate sentence for the first offence and then seeking to achieve an appropriate global result by making the sentence wholly or partially cumulative on the first sentence. (See Mill v. The Queen (1988) 166 C.L.R. 59, 62-4.) Be that as it may, no attack is made on his Honour's approach and therefore the matter need not be considered further.

Counsel for the applicant before us was commendably brief in his submissions. He did not contend that his Honour erred in directing that the head sentence of two years be served cumulatively with the earlier sentence. Similarly, it was not argued that his Honour's fixing of a head sentence of two years was wrong. The complaint was that his Honour imposed a further period of six months in respect of the non-parole period fixed by the first sentence. It was submitted that in the proper exercise of his sentencing discretion, his Honour should not have increased the non-parole period as fixed by the first sentence. Even in that regard counsel for the applicant did not submit that his Honour erred in the approach he adopted. His submission was that his Honour's intuitive discretion miscarried.

The principal argument put to us by counsel was that even a small increase in the non-parole period would have a crushing effect on the applicant given his age, his limited employment prospects and the period of time he spent in prison in a disjointed fashion, broken by periods of bail. It was put that if all these matters were taken into account an appropriate exercise of discretion would have resulted in no increase in the non-parole period. Presumably, the argument is that because his Honour increased the non-parole period, he failed to exercise his discretion appropriately.

Counsel for the applicant also pointed to the concession by the Crown that the offences relating to the first count should add only little to the first sentence and that the "global figure" (namely, the total effective sentence for the three groups of offences) would be mostly made up of the first sentence. As I have indicated, his Honour accepted that approach, but it does not follow that the Crown or his Honour took the view that there should be no increase in the non-parole period. To the contrary, during the submissions made on the plea in mitigation, it was quite apparent that his Honour then considered that the non-parole period should be increased effectively by something like 12 months.

In my opinion, it was open to his Honour to impose an effective increase in the non-parole period given his decision to fix a head sentence of two years' imprisonment and having regard, inter alia, to the nature of the offences of which the applicant was convicted. His Honour took into account, properly, in my view, in addition to the mitigating factors referred to, the characterisation of the offence in question that was made by the Court of Criminal Appeal when it dealt with Bantjes (who had pleaded guilty and was sentenced accordingly and appealed from that sentence to the Court of Criminal Appeal). That Court described the offences as brazen and involving law-breaking on a grand scale over a period of almost 14 months. It also involved a very substantial amount of property. The Court also noted that it was plain that the owners of the vehicles had suffered a great deal of inconvenience, anguish and financial loss following the thefts which took place. It seems clear enough that to the extent that the owners did not suffer financial loss, their insurers did.

His Honour was entitled, in my view, to take all that into account as well as the requirement for general deterrence. That his Honour was considering doing just that was made known to counsel for the applicant during the hearing of the plea in mitigation. Counsel did not in substance disagree with that approach.

His Honour was also entitled to have regard, as he did by cross-referring to the sentencing remarks of 15 August 1995, to the fact that the fraud was sophisticated in its execution inasmuch as it required the forgery of three identification numbers on each of the vehicles stolen. Furthermore, steps were taken to disguise the true identity of the vehicle such as painting it, fitting different wheels and tyres and removing bull-bars and steps. All these offences were carried out for the principal purpose of procuring financial gain to the applicant.

As against all that, however, as I have indicated before, his Honour weighed the mitigating circumstances referred to earlier. In determining the head sentence and the non-parole period, his Honour seems to have followed the two-stage process laid down in R. v. Grmusa [1991] VicRp 53; [1991] 2 V.R. 146 at 157-9. Moreover, there is no reason to think that his Honour was not aware of the purpose of fixing the non-parole period, as has been recently expressed in R. v. VZ [1998] VSCA 32, paragraphs 14 and 15. In the circumstances, therefore, there is no basis, in my view, for the submission that his Honour's discretion in fixing the non-parole period miscarried.

I mention for completeness that it was also put on behalf of the applicant that the Crown somehow acquiesced in the submission made to his Honour "that the applicant sought that no further time be served" beyond that fixed by the first sentence. The Crown's response was that it would not be making any submissions on the question of cumulation and that the matter was to be left entirely to his Honour. In my view, that did not amount to acquiescence by the Crown that his Honour should not increase the non-parole period, but, even if it did, his Honour was not bound by it.

For the above reasons, therefore, it is my view that leave to appeal should be refused.

The order of the Court is that the application is dismissed.

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