R v Thompson [2009] VSCA 13

Mr S Ward, Acting Solicitor for Public Prosecutions

1 I invite Dodds-Streeton JA to deliver the first judgment.

2 The appellant, Gary Thompson, pleaded guilty on 10 June 2008 in the County Court to one count of handling stolen goods ('the plea presentment'), one count of burglary and one count of theft ('the trial presentment'). He was sentenced as follows:

• Handling stolen goods - six months' imprisonment
• Burglary - 20 months' imprisonment
• Theft - six months' imprisonment

3 Three months of the sentence for handling stolen goods were ordered to be served cumulatively on the sentence for burglary, making a total effective sentence of 23 months' imprisonment. A non-parole period of 15 months was ordered and eight days were declared to be time already served.

4 The maximum sentence for handling stolen goods is, pursuant to s 88(2) of the Crimes Act 1958 ('the Act'), 15 years' imprisonment.

5 The maximum sentence for burglary is, pursuant to s 76(3) of the Act, 10 years' imprisonment.

6 The maximum sentence for theft is, pursuant to s 74(1) of the Act, 10 years' imprisonment.

7 The appellant appeals against sentence on the following grounds:

1. The Learned Sentencing Judge erred in failing to have sufficient regard to the issue of delay
2. The Learned Sentencing Judge erred in her consideration of the Appellant's prior criminal history.
3. The individual sentences, total effective head sentence and non-parole period were manifestly excessive.
4. That in light of fresh evidence relating to the cancellation of parole the Appellant should be re-sentenced.

8 The appellant was born on 9 November 1968. He was aged between 33 and 36 years at the date of the offending and 39 at the date of sentence.

9 The offending comprised in the plea presentment occurred on 18 September 2002, when the appellant was present at a shopping centre with a friend and another man whose name he did not know. The appellant was using a car registered in his brother's name. One of his companions approached the appellant carrying a large box containing a Panasonic stereo system stolen from K-Mart, repeatedly urging, 'I've got to go.'[1] The appellant then drove both men to a factory they designated. In a police interview conducted on 19 May 2005, the appellant made full admissions and conceded that he presumed that the man had stolen the item and 'had obviously done the wrong thing' and that the two men were 'known crooks'.[2] He agreed that he drove off knowing that the relevant goods were stolen.

10 The offending comprised in the trial presentment occurred when the appellant, on about 2 January 2005, broke into a clinic in Box Hill South, forced open the cash drawer and stole $200. His fingerprints were identified on the cash drawer. The appellant was not a client of, or associated with, the clinic. At his police interview on 19 May 2005, he denied any knowledge of the break-in at the clinic.

11 The appellant was arrested on 19 May 2005 and charged. He made it clear that he intended to plead guilty to the charge of handling stolen goods, but he denied the other charges. He elected to have those matters (which were indictable offences triable summarily) uplifted to the indictable stream. There was a filing hearing in the County Court on 13 December 2006, a committal mention on 14 March 2007 and an adjournment due to absence of a witness of the contested committal hearing on 30 April 2007. At the contested committal hearing on 30 May 2007 the appellant reserved his plea and was released on bail.

12 There was a case conference on 8 August 2007 and a further case conference on 3 September 2007, followed by directions hearings on 8 April 2008 (at which the appellant confirmed he would plead guilty to handling stolen goods) and on 22 April 2008 (at which the appellant's bail was extended, although he was by then in custody on other matters). There were further directions hearings on 24 April 2008 and 13 May 2008. The trial was set for 10 June 2008.

13 On 10 June 2008, the scheduled trial date, the appellant pleaded guilty to all counts.

14 The sentencing judge rehearsed the circumstances of the offending and the history of the proceeding.

15 Her Honour referred to the appellant's 'truly appalling record'[3] of extensive and serious prior convictions from the age of 17. It is summarised at paragraph 26 of her Honour's reasons as follows:

You were born on 9 November 1968, which makes you now 39 years of age. I note that you have admitted prior convictions which are extensive and serious. You were convicted aged 17 years of escaping from a Youth Training Centre and thereafter you have had a further 31 court appearances at regular intervals up to 16 December 2003. In particular you have been convicted of escape from Youth Training Centre, three charges; armed robbery; aggravated burglary, seven charges; burglary, 11 charges; attempted burglary, two charges; theft, 33 charges; criminal damage and causing wilful damage, two charges; possession of a firearm as a prohibited person; resisting police officer, four charges; unlawful assault, two charges; offensive and disruptive behaviour in gaol; possession of stolen goods, three charges; going equipped to steal, three charges; handling stolen goods, 16 charges; obtaining property by deception, 12 charges; attempting to obtain property by deception, five charges; fail to answer bail, three charges; reckless conduct endangering serious injury; intentionally cause injury; recklessly cause injury; possess drug of dependence; use drug of dependence, four charges and multiple driving offences including dangerous driving and driving whilst unlicensed or disqualified.

16 With respect to the trial presentment, the appellant admitted a total of 166 prior convictions from 32 court appearances.

17 The sentencing judge observed that the appellant's criminal history was 'extensive and serious'[4] and predominantly driven by heroin addiction. Her Honour noted that the appellant had apparently been drug and alcohol free following his release on parole in December 2003 up until January 2005, when he relapsed. He also claimed to have been drug free since January 2005, but her Honour observed that no medical reports or drug screen tests verified that.

18 The sentencing judge noted that the appellant had committed both the burglary and theft and some further offences in 2006 whilst he was on parole.

19 The sentencing judge also noted that the appellant was, since 2003, in a stable relationship with his partner, with whom he had a four-year-old son, and that he had been employed on a regular basis as a labourer or a floor layer while on parole. Her Honour acknowledged his early guilty plea and frank admissions in relation to the handling stolen goods offence which, her Honour said, reflected his acceptance of responsibility. She also noted that his ultimate guilty plea in relation to the other offences had obviated the need for a trial.

20 Her Honour also appeared to accept that the offences were at the lower end of the scale and that the appellant's rate of offending had slowed down.

21 The sentencing judge nevertheless considered that the appellant's drug-free status, even if established, and any abatement in the rate of his offending, were of minimal weight in circumstances where he had committed further offences while on parole. He was, her Honour stated, at significant risk of re-offending and community protection was thus of paramount importance. Further, the sentencing judge observed that the appellant's potential for lasting rehabilitation would remain uncertain unless he adopted positive steps to conquer his drug addiction and to obtain appropriate vocational training.

22 Her Honour observed that, given the appellant's extensive criminal history including the relevant prior offending, both general and specific deterrence were of major importance.

23 Denunciation was also a major sentencing objective, given the appellant's 16 prior convictions for handling stolen goods and his 11 and 33 prior convictions for burglary and theft respectively. Her Honour observed that burglary of medical clinics was prevalent and posed particular problems, such as unauthorised access to drugs and confidential medical records.

24 The appellant submitted that there was an extraordinary delay which was neither referred to nor sufficiently taken into account by the sentencing judge. The offence of handling stolen goods was committed on 18 September 2002 and the appellant was sentenced on 18 June 2008. The delay, counsel submitted, was not attributable to the appellant. The offence was effectively a stale one and the appellant had lost the opportunity to serve it concurrently with his sentence of five years' imprisonment with a non-parole period of two years for the robbery he committed in November 1997.

25 The appellant conceded that he had contributed to the delay of about three years between apprehension and sentence in respect of the burglary and theft, but submitted that it was nevertheless a significant period of delay and that all the matters had been hanging over his head for some time.

26 Further, the appellant submitted that he had made significant efforts towards his rehabilitation during the period of delay.

27 While the sentencing judge did not mention the delay in her reasons, neither, it seems, did counsel for the appellant on the plea expressly rely upon it in mitigation, although he described the handling stolen goods offence as an extraordinarily old offence.

28 In R v Cockerell[5], Chernov JA, in reliance on authority including R v Todd[6], stated that delay constitutes a powerful mitigating factor at a number of levels: first and foremost, his Honour said, because where there is a relatively lengthy process of rehabilitation, its completion should be supported, rather than jeopardised, by the sentence. Secondly, the sentence should reflect the fact that the matter has been hanging over the offender's head for some time, keeping him in a state of suspense; and, thirdly, there is an inconsistency between the prosecution's claim that an offence is serious and its adoption of a leisurely approach, which could justify a sense of unfairness.[7]

29 As Street CJ's observation in R v Todd made clear, such justifications are essentially manifestations of unfairness to an offender arising from the delay, and unless delay has the effect of unfairness, mitigation, particularly substantial mitigation, is unlikely to be justified. So much was emphasised in the decision of the Queensland Court of Appeal in R v L, ex parte Attorney-General of Queensland[8].

30 In this case, the delay between the appellant's apprehension and his sentencing was about three years in relation to both the plea and trial presentment offences, but while the trial presentment offences were committed only a few months prior to his arrest, the plea presentment offence was committed six years beforehand.

31 While there was thus considerable delay, the circumstances do not, in my opinion, establish that it resulted in significant unfairness to the appellant on any of the established bases, such as to justify a substantial moderation of the sentences. There was no compelling evidence of significant steps towards rehabilitation during the delay period. To the contrary, while the appellant's pattern of offending may have diminished during the period of delay, he had, as the sentencing judge observed, despite his claimed drug-free status since January 2005, committed further offences in January 2006.[9] The transcript of the plea indicates that the subsequent charges related to obtaining property by deception by passing a cheque and the theft of a mobile telephone, for which the appellant appeared in the Magistrates' Court on 29 March 2007.

32 Before us, counsel for the appellant stressed that the appellant had remained in employment and had managed to stay out of gaol during this period. Despite the claim, however, that his stable family life had turned around his situation, he nevertheless continued to offend. The appellant's claim to be drug-free was, as her Honour observed, undemonstrated. It was therefore not possible to conclude that he had demonstrated a capacity to live in the community drug-free and without offending. The sentencing judge therefore correctly observed that the appellant's potential for lasting rehabilitation must remain uncertain at this stage.[10] While counsel for the appellant submitted that the matters had been hanging over his head for a considerable period, the appellant was a seasoned and extensive offender and that reduced the impact of the delay.

33 In my opinion, the appellant was nevertheless entitled to a modest degree of mitigation of his sentences due to the delay; but, although her Honour failed expressly to advert to it, the sentences imposed reflect an appropriate degree of moderation on that basis.

35 In relation to the offence of handling stolen goods, the appellant pointed to his early guilty plea, the extraordinary delay, the offence's low end position on the scale, his efforts at rehabilitation and totality as powerful matters in mitigation.

36 In relation to the burglary and theft charges, the appellant pointed to the guilty plea that he made on the day of the scheduled trial, his efforts at rehabilitation, totality and delay. He contended that a sentence of 20 months' imprisonment for burglary was outside the range of properly available sentences and that the total effective sentence was manifestly excessive in the light of its objective seriousness and the matters put forward in mitigation.

37 In my opinion, those submissions were not persuasive. The offences committed by the appellant were in a serious category, as reflected by the maximum penalties prescribed, albeit his offending constituted lower scale examples. Further, her Honour expressly referred to all the mitigating factors except for the delay, and in my view the sentences reflected appropriate weight for those matters, including the delay.

38 Her Honour's emphasis on the need for general and specific deterrence, denunciation and community protection was justified, given the appellant's appalling criminal record, his commission of offences while on parole, the subsequent re-offending, and the lack of any demonstrated substantial step towards rehabilitation by an offender of his age and history. Whether or not the sentences could properly be described as modest, they are not, in my opinion, excessive, and ground 3 is not made out.

39 The appellant contended that the cancellation, on 27 August 2008, of the outstanding period of three years' parole constitutes fresh evidence relevant to totality. The appellant had been sentenced to five years' imprisonment with a two-year non-parole period for armed robbery, two counts of theft, attempting to obtain property by deception, causing injury recklessly and handling stolen goods. He was released on parole on 17 December 2003 and, while on parole, he committed the trial presentment offences.

40 Due to the cancellation of his parole, the appellant must serve the outstanding three years, which, when added to the present sentences, amounts to a total effective sentence of four years and eleven months. The end date of his sentence is 8 May 2013, and he is eligible for parole on 9 September 2009.

41 The cancellation of the appellant's parole post-dated the sentence in this case and the sentencing judge could not take it into account. It is new evidence which should be received.[11]

42 Before us, counsel for the appellant referred to R v Alashkar and Tayar and like authorities. He submitted that the three years of cancelled parole was one of the longest periods of cancelled parole, if not the longest, considered by this Court. Counsel also submitted that the cancelled period of parole exceeds the new total effective sentence, which was also an unprecedented circumstance. Further, he relied on the fact that the robbery offences (which gave rise to the sentence on which the parole was cancelled) occurred back in 1997. Following a retrial, the appellant was ultimately sentenced to five years with a two-year non-parole period. Counsel stressed that after the appellant was released on parole in December 2003 he then served out the three years in the community and complied with the conditions of the parole, save for (and it is, perhaps, not an irrelevant exception) committing the

offences. The appellant was now required, counsel said, to serve the three years parole in prison, and that circumstance, coupled with the age of the robbery offences and the delay in relation to the present offences, argued that totality justified revision of the appellant's sentence.

43 The criminality involved in the robbery which gave rise to the sentence on which the parole was cancelled, as revealed by the reasons for judgment of this Court in R v Thompson[12] delivered on 26 November 2001, appears serious, and it must be remembered that the trial presentment offences and other offences were committed while the appellant was on parole. However, in my opinion, in all the circumstances, including the unprecedented absolute length of the cancelled parole and the relationship of its length to that of the present head sentence, the fresh evidence of the cancellation of the appellant's parole requires his sentence to be varied on the basis of totality as follows. The sentence of six months' imprisonment which was imposed on the count of handling stolen goods should be served wholly concurrently with the sentence imposed on the count of burglary, with the result that the total effective sentence should be reduced from 23 months to 20 months' imprisonment. The date of the appellant's eligibility for parole should be reduced to 14 months which is the minimum reduction consistent with the requirements of s 11(3) of the Sentencing Act 1991. While it must be assumed that the appellant will be required to serve the entirety of the sentence, a non-parole period of 14 months does not appear to be an unjust measure of the criminality involved.

44 In my opinion, the appeal should be allowed on the basis of the fresh evidence and the appellant should be re-sentenced as I have indicated.

45 I agree. As counsel for the respondent frankly and fairly conceded, the offence of handling stolen goods is both a stale offence and, in terms of seriousness, very much towards the bottom end of the scale. In those circumstances, and in light of the lengthy period of three years cancelled parole, not least because it exceeds the total effective sentence of 23 months, it is appropriate to order that the sentence imposed on the count of handling be served concurrently with the sentences imposed on the other counts, and thus, as Dodds-Streeton JA has proposed, the total effective sentence be reduced from 23 months to 20 months.

46 Other things being equal, I should be disposed to reduce the non-parole period by a similar amount, but given the appellant's appalling history of criminal offending, and thus far his inability to resist the temptation further to offend when released on parole, I consider that such a reduction in the non-parole period would be likely to undermine public confidence in the sentencing process. All things considered, therefore, I too am of the view that the non-parole period should be reduced by only one month to 14 months.

1. The total effective sentence is therefore 20 months' imprisonment.
2. A non-parole period of one year and two months is fixed.
3. It is declared that the number of days already served under the sentence so imposed is 245 days, including this day, and it is directed that the fact of the declaration and its details be entered in the records of the Court.

[1] Police record of interview, 19 May 2005, 13.

[5] (2001) 126 A Crim R 444; [2001] VSCA 239.

[6] [1982] 2 NSWLR 517.

[7] Also see R v Miceli [1997] VSC 22; (1997) 94 A Crim R 327, 330 (Tadgell JA with whose reasons Winneke P and Charles JA agreed).

[8] [1995] QCA 444; [1996] 2 Qd R 63, 66-7; [1995] QCA 444. Also see R v Phillips and Woolgrove [2008] QCA 284, [52] (Fraser JA).

[11] R v Alashkar and Tayar (2007) 17 VR 85; [2007] VSCA 182.

[12] [2001] VSCA 208.