R v Simmons [2008] VSCA 185

2 On 1 August 2007, the appellant, Jake Simmons, pleaded guilty in the County Court at Melbourne to one count of handling stolen goods and one count of possession of a drug of dependence. After hearing a plea in mitigation, the judge sentenced him on 23 August 2007 to a term of two years and nine months' imprisonment on the count of handling and to a fine of $500 on the count of possession.

3 His Honour ordered that 12 months of the term of two years and nine months be suspended for a period of three years. This resulted in a term of one year and nine months to be served with the balance of 12 months suspended.

4 The appellant now relies upon four grounds of appeal against his sentence. In summary, he argues that he should be re-sentenced because:

• a co-offender, one EDB, was successful in having his sentence reduced by this Court earlier this year;

• the sentencing judge erred in regarding the appellant's culpability as greater than that of a co-offender, Stephen Kavanagh;

• his Honour erred in failing to inform counsel for the appellant that he proposed to sentence the appellant on the footing that his culpability was greater than that of Kavanagh based upon the maximum penalty for the offence of handling; and

• his Honour erred in his amplification of a parity principle.

5 In order to understand these grounds, it is necessary to summarise briefly the circumstances surrounding this offence. In 2003 police obtained warrants to monitor and record telephone conversations to and from mobile phones and the landline used by Kavanagh. The warrants were obtained on the basis that Kavanagh was a suspected drug trafficker. At that time the appellant was employed as a sub-contractor for P&O Transport at the Melbourne docks.

6 On 20, 21 and 22 June 2003 the police intercepted a series of telephone calls between Kavanagh, EDB, one Mark Malkoun and the appellant. EDB was a yard foreman at the docks and Malkoun was a driver employed by Kavanagh as a sub-contractor.

7 The substance of the conversation intercepted on 20 June concerned the planning and execution of the theft of two container loads of cigarettes from the wharves. EDB was in the dock area keeping watch over security personnel. He received reports from Kavanagh of the approach of the vehicle which was to be used to convey the cargo to an unknown destination. Malkoun was the driver of this vehicle which he had previously stolen.

8 The appellant was heard speaking to Kavanagh both before and after the theft. The appellant arranged a rendezvous with Kavanagh and later that evening they met at a service station. By that time Malkoun was driving the stolen vehicle containing the cargo.

9 On 22 June 2003 the police intercepted a conversation between the appellant and Kavanagh concerning the price to be paid for the cigarettes. The appellant told Kavanagh that he had a buyer. Later Kavanagh was heard acknowledging that he had been paid a sum of money. Subsequently he telephoned his sister and asked her to put the money in her safe. She was later arrested after leaving Kavanagh's house and found to be in possession of some $40,000 in cash.

10 The sentencing judge had previously sentenced Kavanagh, as well as his sister, EDB and Malkoun. In the case of Kavanagh, the Crown accepted that the $40,000 represented his share of the sale price of the cigarettes. As regards EDB, there was no evidence as to what, if anything, he had been paid, though it would appear that a debt of between $1000 and $2000 owing to Kavanagh in respect of drugs was not repaid. Malkoun's reward was unknown.

11 The sentencing judge noted that the cigarettes were contained in two shipping containers. They were packaged in 41,350 cartons branded "Marlboro", "Peter Jackson", "Alpine" and "Longbeach". The Crown submitted that these cigarettes, if sold in Australia, would have had a retail value in the order of just over $3m. However, because they do not contain the requisite warnings, they could not have been sold in this country. They were to be marketed in Vanuatu and Kiribati. At those destinations, they would have had a market selling price of approximately $1.7m. On any view, the quantity of cigarettes was vast and their value considerable.

12 On 19 November 2003 the appellant was arrested and his residence searched by police. Located there were a number of mobile telephones, SIM cards, listening devices and night vision goggles. A minute quantity of methylamphetamine, 0.3 grams, was found in the appellant's possession.

13 The appellant ultimately pleaded guilty, though not until very late in the proceedings. It was submitted on his behalf that Kavanagh had been the principal offender. The sentencing judge remarked that Kavanagh's involvement in the criminality 'far exceeded' that of the appellant and that 'the web that he had spun had inveigled 11 others beside the appellant'. Primarily they were drug dealers and drug users.

Clearly, yourself, Kavanagh, EDB and Malkoun were complicit in the heist, though in terms of the offences which each of you effected, having regard to the maximum sentence, yours was the most culpable.

15 The sentencing judge then noted that he had sentenced Kavanagh to two years and nine months' imprisonment for the theft of the cigarettes. Kavanagh had prior convictions for theft and also for handling stolen goods. EDB had been sentenced to two years and nine months' imprisonment for the theft of the cigarettes. He had prior convictions for assault, and for causing injury intentionally, but none for dishonesty. Malkoun had been sentenced to nine months' imprisonment for theft of the truck and three years' imprisonment for theft of the cigarettes. He had prior convictions for motor vehicle offences.

16 His Honour then returned to the question of the relative culpability of the various offenders. He said:

I consider your culpability in respect of Count 1 to be more serious than that of Kavanagh. This is because the maximum penalty for the offence which you have committed is 15 years' imprisonment, whereas the offence of theft is ten years' imprisonment. However I do accept that Kavanagh organised Malkoun and [EDB] though I make no finding as to the extent of his influence over you or vice versa on the evidence before me. As I have recognised, Kavanagh has prior convictions of dishonesty whereas you do not.

17 Counsel for the appellant submitted that Court should re-sentence his client because the sentence imposed on EDB for theft had been reduced on appeal from two years and nine months to two years.[1] He submitted that given that the sentencing judge had plainly determined that the appellant should receive the same sentence as EDB, it was appropriate that this Court should give effect to the intent referred to in R v Guthrie & Nuttal[2] and R v Sibic[3] in that regard.

18 Counsel also submitted that the sentencing judge had erred in regarding the appellant's culpability as greater than that of Kavanagh by reason merely of the difference in maximum penalties applicable in each case. He submitted that the difference in maximum penalty between the two offences did no more than reflect the legislature's view that the worst case of handling could be conceived as warranting more severe punishment than the worst case of theft. He cited DPP v Aydin & Kirsch[4] and R v Sibic[5] in support of that contention.

19 In a related submission, counsel argued that throughout the plea it was the appellant's case, and never challenged by the Crown, that Kavanagh was the driving force behind the theft. The appellant was described as a 'middle man'. That seemed to be the view of the sentencing judge as well. Indeed, his Honour accepted the proposition that Kavanagh was the 'main player'. In those circumstances, it was not open to his Honour to have concluded, as he ultimately did, that the appellant was more culpable than Kavanagh.[6]

20 Finally, counsel for the appellant submitted that despite the very different roles played by each of Kavanagh, EDB and his client, and despite their very different prior histories and matters personal to them, the sentencing judge had imposed identical head sentences on each of them. This must be taken as revealing error in his Honour's application of the parity principle. In particular, the appellant ought to have received a significantly lower sentence than did Kavanagh.

21 Counsel submitted that on a re-sentencing by this Court, the appellant should receive the same sentence as did EDB, namely, two years, or, alternatively, a sentence somewhere between that of EDB and Kavanagh, who, of course, received two years and nine months in relation to the count of theft.

22 Counsel appearing for the Crown submitted that merely because EDB had succeeded in his appeal, it did not follow that the appellant should be re-sentenced. In the matter of EDB, the sentencing judge had made a specific sentencing error. The sentence that he imposed upon count 1, which involved trafficking in drugs, and that imposed upon count 2, theft of the cigarettes, had been inadvertently transposed. Each sentence had passed into record. His Honour had intended to impose a sentence of nine months' imprisonment on the count of trafficking and two years and nine months' imprisonment on the count of theft. His error (which he acknowledged) required EDB to be re-sentenced.

23 By the time the matter came to be heard by the Court of Appeal, EDB's position had altered significantly. It had become clear that he had assisted the police not merely in relation to the matters that were the subject of the two counts to which he had pleaded guilty, but also in relation to a range of other unrelated matters. In the words of the Court of Appeal, further material that had been placed before it demonstrated that EDB had become 'a true informer' in the broader sense. In these circumstances, it was hardly surprising that the Court of Appeal reduced EDB's sentence on the count of theft of the cigarettes to one of two years' imprisonment with one month cumulative in relation to the count of trafficking and fixed a non-parole period of 15 months.

24 Counsel for the Crown submitted that the appellant could not call in aid any such mitigating circumstances. Accordingly the re-sentencing of EDB did not necessitate a similar re-sentencing of the appellant.

25 As regards grounds 2 and 3, counsel for the Crown properly acknowledged that the appellant's culpability could not be regarded as greater than that of Kavanagh merely because the maximum penalty for handling stolen goods happened to be greater than that for theft. He also acknowledged that, in the particular circumstances of this case, the sentencing judge ought to have alerted counsel for the appellant to the fact that he was minded, nonetheless, to make such a finding so that this issue could have been addressed, and that his failure to do so constituted sentencing error.

26 Counsel for the Crown's concession that the sentencing judge fell into error by treating the appellant as being more culpable in relation to this offence than Kavanagh may, in fact, be doing his Honour a disservice. On one view of his sentencing remarks, all that he really intended to say was that the appellant had pleaded guilty to an offence that, by reason of its maximum sentence being greater than the offence of theft, might be regarded as a more serious offence. If that was the burden of what his Honour intended, there could be no criticism of what he had to say. Such an interpretation of his Honour's remarks would be consistent with his Honour's comment, at one point, that Kavanagh's involvement in criminality 'far exceeded' that of the appellant.

27 Nonetheless, the Crown having made the concession that his Honour had fallen into the specific sentencing error identified, I am prepared to proceed on that assumption. Notwithstanding that concession, it was submitted on behalf of the Crown that in sentencing the appellant to two years and nine months' imprisonment, his Honour had still imposed a sentence that could only be regarded as merciful. The offending had been brazen. It involved an 'insider', namely EDB. The offenders had stolen from the wharves two shipping containers of cigarettes valued at more than $1m. The theft had been intended to net them some half a million dollars. The stolen cigarettes had never been recovered.

28 Finally it was submitted on behalf of the Crown that there was no reason why the appellant should have received a lesser sentence than did Kavanagh. The appellant had been critical to the success of the enterprise. He was indeed the 'middle man' who engaged with the thieves before the goods were stolen and he was the means by which any profit from the enterprise would be realised. He was also the conduit through which a part payment of $40,000 was made by the purchasers of the stolen cigarettes to Kavanagh.

29 The authorities to which we were taken establish that a reduction by this Court of the sentence imposed upon one offender has the necessary consequence of reopening the sentencing discretion in relation to a co-offender.[7]

30 The cases suggest that this Court, having reduced the sentence of one offender, is then required to consider questions of parity with co-offenders who are also appellants. However, it does not necessarily follow that parity will require a reduction in both sentences. That will depend upon the particular circumstances of the case. The sentencing judge in this case plainly thought that the appellant and EDB should each receive two years and nine months for their part in this overall criminal venture. However, his Honour was not aware of the entire extent of EDB's involvement as an informer and did not therefore accord him the full discount to which was entitled. The correction of that 'error' by this Court (assuming that it be so characterised) does not entail conferring upon the appellant a benefit to which he is not now, and never has been, entitled.

31 The Crown's concession of error on the part of the sentencing judge means that this Court must consider for itself whether a sentence other than two years and nine months' imprisonment, with 12 months suspended, ought to have been passed. To describe that sentence as merciful for a crime as sophisticated and well organised as this is, if anything, an understatement. The sentence was extremely lenient, almost to the point of being inadequate. No lesser sentence is warranted.

32 I am not persuaded that there is any merit in the submission put regarding parity. It may be that the appellant should be viewed as having been less culpable in relation to this offence than Kavanagh. It does not follow that, by reason of parity, he must receive a lesser penalty than that imposed upon Kavanagh. The Court does not compound one error by making another. It does not, through a misguided application of the principles of parity, impose a sentence that it regards as manifestly inadequate.

33 I accept, of course, that parity in the punishment of offenders is a basic objective in sentencing. As the High Court has made plain, inconsistency in punishment is regarded as a badge of unfairness and unequal treatment under the law. Such inconsistency is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.[8] Any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender who receives the heavier sentence.[9]

34 In Postiglione v R,[10] the High Court emphasised that the parity principle recognised that equal justice required that as between co-offenders, there should not be a marked disparity giving rise to a justifiable sense of grievance. If there were, the sentence should be reduced notwithstanding that it was otherwise appropriate and within the permissible range of sentencing options. Of course, the imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warranted disparate sentences is also unjust.[11]

35 An illustration of these principles may be found in the proposition that a sentencing judge is not obliged to achieve parity in the case of an offender sentenced pursuant to an agreed statement of facts in circumstances where his or her co-offenders do not receive the benefit of such a statement. [12]

36 I accept that the principles of parity must always be taken into account, even where a sentencing judge considers that a sentence previously imposed on a co-offender may be inadequate.[13] The extent to which those principles will operate to constrain the sentencing discretion will, however, vary from case to case.

37 In R v Patterson,[14] Crockett J endorsed the following passage from R Fox & A Freiberg, Sentencing: state and federal law in Victoria:

Considerable difficulties arise when one offender has been awarded a wholly inappropriate sentence and a co-offender appeals against his own on the ground of disparity. The dilemma facing the Court is that the sentence imposed on the applicant may be entirely correct. The principle of uniformity has been breached. The Victorian dilemma is solved in the following manner. The principle of parity between sentences does not require a Court sentencing an offender to impose what in its view is a wholly inappropriate sentence merely because such a sentence has been imposed on a co-offender. However, this does not mean that a manifestly inadequate sentence passed on a co-offender can be completely ignored. However, disproportion between the

sentences is manifestly not merely overly excessive, the sentence though adequate, may be altered to avoid the feeling of injustice on the part of the co-offender. Of course the sentencing judge should not attempt to achieve parity when the co-offenders played different roles and were convicted of different offences in different circumstances.[15]

38 Because I consider that no different sentence ought to have been imposed upon the appellant, and I do not regard him as having a justified sense of grievance, I would dismiss this appeal.

39 As I see it, there is a good deal to be said for the view advanced by counsel on behalf of the Crown. The sentence imposed on the appellant's co-offender, Cavanaugh, in respect of the subject offences is to be seen in the context that it was imposed as part of a larger total effective sentence of seven and a half years for both the subject offences and other offences. It is therefore not unlikely that the sentencing judge regarded himself as constrained by the totality principle to mitigate the sentences imposed in respected of the subject counts, so as to avoid a disproportionate or crushing total effective sentence. Consequently, if taken alone, the sentence imposed on Cavanaugh in respect of the subject offences would appear to be particularly lenient.

40 As counsel submitted on behalf of the appellant, it may be that the appellant's culpability falls somewhere between that of his co-offenders, Erdman and Cavanaugh, and thus, other things being equal, the parity principle would imply the imposition of a sentence somewhere between the two. But in the circumstances of this case, the leniency of the sentence imposed on Cavanaugh in respect of the subject offences renders that inappropriate.

41 Like my brother Weinberg, with whose judgment I agree, I do not consider the appellant has a justified sense of grievance and thus I too would dismiss the appeal.

42 I agree and I would dismiss the appeal for the reasons given by my brothers.

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

[1] See R v EDB [2008] VSCA 18.

[2] [2006] VSCA 192, [87].

[3] [2006] VSCA 296, [50].

[4] [2005] VSCA 86, [9]-[12].

[5] [2006] VSCA 296, [50] (Redlich JA).

[6] R v Young (1996) 85 A Crim R 104, 110 (Charles JA).

[7] R v Guthrie & Nuttal [2006] VSCA 192, [87]. In that case a reduction in the sentence of Guthrie from a total effective sentence of 32 years with a non-parole period of 26 years to 29 years with a non-parole period of 25 years led, of itself, to a reduction in the case of Nuttal from a total effective sentence of 30 years and a non-parole period of 24 years to a sentence of 26 years with a non-parole period of 23 years. See also R v Sibic, [50].

[8] See Lowe v R [1984] HCA 46; (1984) 154 CLR 606, 610-11.

[10] [1997] HCA 26; (1997) 189 CLR 295.

[12] R v Mielicki (1994) 73 A Crim R 72, 85.

[13] R v Pecora [1980] VicRp 47; [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430; R v Capper (1993) 69 A Crim R 64; and R v Morrice (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Southwell, Ormiston and McDonald JJ, 9 May 1995).

[14] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Gray and Ormiston JJ, 24 July 1986.)

[15] R Fox and A Freiberg, Sentencing: state and federal law in Victoria (1st ed, 1985).