R v Thow [1999] VSCA 17

Court of Appeal (Vic)|1999-02-16|Before: PHILLIPS, C.J., CHARLES and BUCHANAN, JJ.A.

The applicant, who was born on 6 March 1975, pleaded guilty in the County Court at Melbourne on 28 August 1998 to a presentment alleging three counts of theft (counts 2, 4 and 6), two counts of burglary (counts 1 and 3), one count of aggravated burglary (count 5), one count of armed robbery (count 7) and one count of reckless conduct endangering persons (count 8). A co-accused, Britt Lee Edwards, was also presented on all of these charges other than counts 1 and 8, and pleaded guilty. The maximum penalty for aggravated burglary and armed robbery was then 25 years' imprisonment, for burglary and theft it was 10 years' imprisonment and for reckless conduct endangering persons it was five years' imprisonment. The applicant admitted 130 prior convictions from 15 court appearances and Edwards admitted one prior court appearance.

A plea was heard on the same day and two victim impact statements were tendered. During the applicant's plea there was also tendered a letter from Hans Enter, a drug and alcohol counsellor from Moreland Hall, and a certificate from the Prisoner Listener Scheme.

The circumstances giving rise to these offences were as follows. On 9 January 1998 the applicant, with his mother, attended a garage sale conducted at the rear of 246 Carrick Drive, Gladstone Park, the applicant's mother having been interested in purchasing a television set. At approximately 5 a.m. the following morning, the applicant returned to the victim's house and gained entry to the garage through a window. As the applicant entered, the garage alarm sounded and the victim was woken. The victim went to the garage, saw the applicant inside and attempted to detain him with a pitchfork. The applicant however picked up a sewing machine from the garage, threw it out of the window at the victim and escaped through the window empty-handed (count 1). The applicant was arrested at his home on 15 January and during an interview on that day made full admissions to the offence.

Count 2 on the presentment represented the first of a number of offences committed by the applicant and the co-offender on 25 March 1998. At approximately 11 a.m. that day the applicant and Edwards went to the carpark of the Gladstone Park Shopping Centre. They found an unlocked white Holden Commodore sedan in the carpark, entered it and, with a key they found inside, started and drove away the car. It was later recovered with damage to the rear in circumstances which I shall recount shortly. At 2.30 p.m. on the same day, the applicant and Edwards arrived in the stolen car at the address of an acquaintance in Heidelberg West. Finding that the occupants of the house were not at home, they gained entrance through a back window, and took out to the stolen car an Optus Vision CATV converter and a remote control; a television set; a Nintendo 64 computer console and four games; a stereo and remote control; a video recorder and remote control; and a pair of headphones, all of which were valued at $2,144 (counts 3 and 4). The property was found by police in the stolen car when the applicant was later apprehended.

At approximately 6 p.m. on the same day the applicant and Edwards drove to an address in Carlton, again in the stolen car, and knocked on the door. The occupants were at home and answered the knock. After a short conversation the applicant and Edwards left, and the occupants went back to the kitchen where they were preparing their dinner. The applicant and Edwards then gained entry to a back room through a window and stole from these premises a laptop computer; some compact disks; a wallet containing credit cards; a licence and $70 cash; a purse; a mobile telephone; a diary and textbooks; another wallet; a camera; a watch and a pair of sunglasses, all of which had a total value of $2,975 and was later recovered in the stolen car (counts 5 and 6).

The applicant and Edwards then drove the stolen car to a chemist's shop in East Brunswick. The applicant parked the car outside the front of the premises and took the car jack out of the boot. A pharmacist and his assistant were working in the shop when the applicant entered. He pointed the car jack at the assistant, and demanded drugs and cash. The pharmacist and the assistant were both unsure whether the car jack was a gun. The applicant took $185 in cash from the till and threatened the pharmacist saying, "Don't fuck with me or I'll kill you." The pharmacist handed the applicant drugs and the applicant also helped himself to drugs from the refrigerator and took the assistant's wallet. The applicant and Edwards left in the stolen car after being told that the police had been called (count 7).

Shortly afterwards, the applicant was observed driving the stolen car with Edwards beside him by a plain clothes police officer who pursued them in another car. A marked police car joined the pursuit and on observing the marked car the applicant turned into a driveway. The marked police car parked behind the stolen car and the unmarked car drove in behind the marked car. As the police officers approached the stolen car, the applicant reversed the stolen car into the marked police car twice.

The applicant was interviewed in relation to these offences on 25 March 1998 and offered denials in relation to counts 3 and 4 but otherwise substantially admitted the offences charged.

The applicant now seeks leave to appeal against sentence. Ground 2 of the application claims that the learned judge did not give sufficient weight to the totality of the term of imprisonment imposed. In support of this ground Mr Thomas, who appeared for the applicant, argued that the total sentence imposed was an aggregate not commensurate with the totality of the criminal conduct of the appellant and he submitted that further concurrency was necessary in the circumstances. In response Mr Gyorffy, who appeared for the Crown, submitted that the principle of totality was not breached because the circumstances showed an extensive catalogue of crimes over a lengthy period of time, involving breaches of previous orders where leniency had been shown to the applicant, and furthermore that the applicant had a very bad criminal record involving similar offences. The prior convictions of the applicant do indeed include assault with a weapon, numerous charges of burglary and theft, trafficking in a drug of dependence, robbery, attempted armed robbery and intentionally causing injury. The present offences were committed during the period of a suspended sentence imposed on 6 October 1997 and, as to the 25 March offences, while he was on bail. In these circumstances, having regard to the nature of the offences committed by the applicant on 9 January and 25 March 1998, there can be no question that the principle of totality was breached by the sentences imposed by the learned judge, nor can it be said that the orders for cumulation were not open to his Honour. Ground 2 fails.

Ground 3 involved a claim that the learned judge did not give sufficient weight to the principle of parity in relation to the sentence for aggravated burglary given the sentence imposed upon the co-offender. It is convenient to take with this ground ground 8, which claimed that the learned judge erred in assessing the role played by the applicant in the offences in comparison with the co-accused. In support of these grounds it was argued that the sentences imposed were such as to engender a justifiable sense of grievance having regard to the difference between the cumulation and minimum term ordered for the appellant and the suspension and release on adjournment following conviction ordered for Edwards. Mr Thomas analysed the sentences imposed on the applicant and Edwards and submitted that the disparity was such as to engender a justifiable sense of grievance on the part of the applicant and further that the disparity was such as to give the appearance that justice had not been done. In response Mr Gyorffy argued that no error was shown since the co-accused was a young person with only one prior court appearance, who had a much lesser involvement in the offences; whereas the applicant was sentenced in regard to some offences which did not apply to the co-accused, and was also subject to a number of aggravating factors including that he had committed these offences in breach of a suspended sentence, and whilst on bail.

The co-offender was aged 19, with technically no prior convictions, and in her case the sentences imposed would plainly have been based upon considerations of her rehabilitation and the need to avoid, if any other course were open, a sentence requiring her incarceration (see The Attorney-General v. Chmil and Zanoni, unreported, Court of Criminal Appeal, 1 August 1977). Furthermore the learned judge was entitled to infer that the applicant was the principal offender in relation to the events of 25 March, having regard to his long criminal record, his age and the part he played both as driver of the car and in the armed robbery. In my view all of these differences were indeed so substantial that any sense of grievance felt by the applicant would not be shared by an objective observer (see R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 per Callaway, J.A. at 404). As Dawson, J. said in Lowe v. R. [1984] HCA 46; (1984) 154 C.L.R. 606, at 623, "Where the circumstances of each offender or of his involvement in the offence are different, then different sentences may be called for". Notwithstanding the disparity of the sentences imposed as between these two offenders, including in the orders for cumulation affecting the applicant, in my view grounds 3 and 8 also fail.

Ground 4 of the application alleges that the learned judge did not give sufficient weight to the applicant's plea of guilty. Mr Thomas argued in support of this ground that the sentences imposed did not sufficiently reflect any sentencing discount for the guilty pleas, and reliance was placed on R. v. Duncan [1998] 3 V.R. 208. In reasons for sentence, the learned judge made express reference to the pleas of guilty that had been entered as a factor to be taken into account, both as evidence of remorse and as having the practical effect of affording significant savings to the State and relieving witnesses of the trauma and inconvenience of attending to give evidence. His Honour noted that both offenders had pleaded guilty or indicated an intention of doing so at the Magistrates' Court. In fact the Crown case in respect of most of the offences, and certainly the offence of armed robbery, was an overwhelming one. The applicant, with his co-offender, was apprehended by the police in circumstances where he had backed his stolen car into the police car, the stolen car then containing a large collection of items stolen during the course of the burglary which gave rise to counts 3 and 4, the aggravated burglary which gave rise to counts 5 and 6, and the armed robbery which gave rise to count 7. He had been observed by the victim of the offence which made up count 1, and had admitted the offence in a record of interview with the police shortly afterwards. In these circumstances, the plea of guilty was of much less weight. Furthermore his Honour was entitled to find, as he did, that less than complete co-operation with the police had been given by the applicant. I shall return to ground 4 when dealing with ground 1.

By ground 5 it was alleged that the learned judge gave insufficient weight to the nature and quality of the applicant's addiction to illicit substances. Mr Thomas did not seriously press this ground, nor did he separately address grounds 6 and 7 which in effect alleged that the learned judge had failed to give sufficient weight to the rehabilitation of the applicant or the evidence submitted in support of his rehabilitation during the plea.

Ground 1 raised the claim that the sentences were manifestly excessive. In effect the submission was that the sentences were manifestly excessive by reason of the disparity with the sentences imposed on the co-offender, as not adequately reflecting a sentencing discount for the pleas of guilty, as infringing the principle of totality, and as failing to take into account all the circumstances of the offences themselves and the applicant. Having regard to the nature of the applicant's prior convictions and the circumstances of the offence which have already been set out in some detail, it cannot in my view be said, notwithstanding the pleas of guilty, and the other matters urged on behalf of the applicant, that the sentences imposed by the learned judge were other than well within the range open to his Honour. Grounds 1, 4, 5, 6 and 7 in my view also fail. Ground 9 was not pressed by Mr Thomas.

In all the circumstances I would dismiss the application.

I agree with the conclusions of Charles, J.A. and I would subscribe to his Honour's reasons for reaching them.

The order of the Court is that the application for leave to appeal against sentence stands dismissed.

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