R v Tinti [2010] VSCA 9

1 I invite his Honour Habersberger AJA to deliver the first judgment.

2 On 11 April 2007, the applicant, Renato Tinti, pleaded guilty before the County Court to eleven counts of burglary, one count of attempted burglary, eight counts of theft and one count of conspiracy to commit burglary. All of the offences on the presentment, No C 0504427.1 ('the first presentment'), were committed between 22 January 2005 and 5 February 2005. The plea hearing was adjourned to 10 August 2007. The applicant had been arrested on 6 February 2005, committed for trial on 201 charges, including the 21 counts on the first presentment, on 16 December 2005, and not released on bail until 22 February 2006.

3 On 10 August 2007, the applicant pleaded guilty before the County Court to one count of burglary, one count of theft and one count of possession of a drug of dependence (cocaine). All of the offences on the presentment, No C 0605182.1 ('the second presentment'), were committed on 9 June 2006, whilst he was on bail.

4 On 23 August 2007, after hearing a plea in mitigation of penalty in respect of the offences on both the first and second presentments on 10 August 2007, the applicant was sentenced as follows. In respect of the first presentment he was sentenced to 15 months' imprisonment on each burglary count, nine months' imprisonment on the attempted burglary count and on each theft count, and 20 months' imprisonment on the conspiracy count. The learned sentencing judge ordered that the sentence imposed on the conspiracy count be the base sentence and ordered that four months of each of the 11 burglary sentences, and two months of the attempted burglary sentence and each of the eight theft counts be served cumulatively upon the base sentence and upon each other. That resulted in a total effective sentence of six years and 10 months.

5 In respect of the second presentment, the applicant was sentenced to 18 months' imprisonment on the burglary count, nine months' imprisonment on the theft count and one month's imprisonment on the possessing of drug of dependence count. His Honour ordered that three months of the theft sentence be served cumulatively upon the burglary sentence, making an effective sentence of 21 months' imprisonment.

6 Finally, his Honour directed that six months of the sentence imposed on the second presentment be served cumulatively upon the sentence imposed on the first presentment. The total effective sentence in respect of all offences on the two presentments was therefore seven years and four months' imprisonment. His Honour fixed a period of five years and six months before the applicant was eligible for parole.

7 On 29 August 2008, leave to appeal against the sentence imposed by the learned sentencing judge was refused by Buchanan JA.

8 On 16 September 2008, the applicant filed an election to have the application for leave against sentence determined by this Court.

9 On 18 November 2008, the application was dismissed, the applicant having failed to file a full statement of grounds in respect of the application within the prescribed period of time.

10 On 19 December 2008, this Court handed down judgment in the appeal by Mario Katsoulas,[1] the applicant's co-offender in respect of the offences the subject of the first presentment. Like the applicant, Mr Katsoulas had been sentenced (by another judge) on the conspiracy count to 20 months' imprisonment. Relevantly, for reasons which I will refer to below, the Crown in Mr Katsoulas' appeal conceded that the sentence on the conspiracy count was too high.[2] Accordingly, Mr Katsoulas was re-sentenced on the conspiracy count to 12 months' imprisonment.[3]

11 On 22 May 2009, the applicant applied through his then solicitor for legal aid. That application was refused by Victoria Legal Aid ('VLA') on 26 May 2009. On 2 June 2009, the applicant wrote directly to VLA requesting a reconsideration of the decision to refuse aid. Following further correspondence, on 9 November 2009 VLA decided to grant the applicant legal aid.

12 In the meantime, on 17 August 2009 an affidavit by the applicant's then solicitor was filed seeking reinstatement of his appeal. It was said in that affidavit that following the refusal of his application for leave to appeal against sentence, the applicant sought financial assistance from family and friends to fund the further application. At that stage, it was proposed that the applicant would appear in person.

13 Following the grant of legal aid, new solicitors were instructed to act on behalf of the applicant. A full statement of grounds of appeal was filed by them on 13 January 2010. A fresh affidavit in support of the reinstatement application was sworn by Anthony Brand of the firm of Slades and Parsons on 1 February 2010.

14 The respondent conceded that the re-sentencing undertaken in Katsoulas infected the applicant's sentence with error on ordinary parity principles such as to vitiate the sentence and compel a re-sentencing by this Court. This concession was clearly correct, particularly because it was obvious that his Honour had followed what the sentencing judge in Mr Katsoulas' case had done in respect of the conspiracy count. (The transcript of his Honour's reasons for sentence was an exhibit in the applicant's plea). After stating that the applicant was sentenced to 20 months' imprisonment on the conspiracy count, his Honour said:

On the intercept materials contained in the depositions it would appear you and Katsoulis [sic] were equally involved in the planning.

15 This concession by the respondent means that this is one of those possibly rare cases where a belated application for reinstatement of an appeal should succeed. In the circumstances, it would not be just to refuse to allow the applicant to raise the issue of parity following this Court's re-sentencing of the co-offender.

16 As was pointed out in the judgment of Redlich JA in Katsoulas, the conspiracy count related to 'premises of persons unknown'.[4] The reason for reducing the sentence in the conspiracy count was stated by Redlich JA as follows:

It was accepted that his Honour had been encouraged to impose a sentence on the conspiracy on the basis that the appellant and his co-offender had contemplated committing burglaries at other identifiable premises during the conspiracy period other than those covered by the substantive counts as well as unknown premises that they intended to burgle on the 9 February. The respondent acknowledged that the identifiable premises fell outside the terms of the conspiracy count and that it only applied to the contemplated burglaries on 9 February. For these reasons the respondent conceded that the sentence on the conspiracy was too high. It was submitted that one of the burglaries should be the base sentence on re-sentencing the appellant.[5]

17 The same wording was used in the applicant's charge of conspiracy. Yet, in opening the Crown's case against the applicant, the prosecutor had, when describing the facts of the conspiracy count, also referred to recorded discussions between the applicant and his co-offender concerning burglaries at identified addresses. Thus, the same error occurred. This means that the sentencing discretion is re-opened.

18 In the circumstances, it is not necessary to refer to the background and particular circumstances of the applicant which have been set out in quite some detail by the learned sentencing judge in his sentencing remarks. I note, however, that his Honour did make reference to the fact that much of the applicant's criminal behaviour including past drug offences had been directed at financially funding his gambling.

19 It is also unnecessary to set out the particular circumstances of the offences which are again detailed in his Honour's sentencing remarks. However, it should be noted, as his Honour did, that the conduct involved in those offences involved detailed planning, victim surveillance, invasion of peoples' homes with the potential for considerable financial gain for himself and his co-offender. Also, the planning involved deliberately targeting premises of people of Indian, Sri Lankan and other Asian ethnic backgrounds in the belief that the cultural practices of those people meant that they were likely to have gold and jewellery on their premises.

20 Dealing first with the sentence on the conspiracy count, it was submitted on behalf of the applicant that this Court should follow the earlier decision in Katsoulas and reduce the sentence to 12 months. It was submitted on behalf of the Crown that the clear distinguishing features between the circumstances of the applicant and Katsoulas meant that there need be no automatic reduction to the same term of imprisonment as was imposed by this Court in Katsoulas. In my opinion, the applicant's sentence on the conspiracy count should be a term of imprisonment of 15 months. It should remain the base sentence.

21 As far as the sentences imposed on the other counts, I am of the view that the sentences imposed by his Honour were appropriate and should be followed by this Court. Therefore, I would re-sentence the applicant as follows:

Total Effective Sentence: Six years five months' imprisonment

Total Effective Sentence: One year nine months' imprisonment

22 I would order that six months of the sentence imposed on the second presentment be served cumulatively upon the sentence imposed on the first presentment, making a total effective sentence of six years and 11 months. I would fix a period of five years and two months before the applicant is eligible for parole. There should be a declaration that 1,718 days have already been served in custody.

23 I agree, for the reasons given by my brother Habersberger, that the sentence imposed on Count 12 on the first presentment ought be reduced from 20 months to 15 months. Despite the submissions of counsel on behalf of the applicant, however, I am not persuaded that the judge below was otherwise in error in the formulation of the individual sentences or the degree of cumulation which his Honour imposed. Accordingly, I agree with disposition of the application proposed by Habersberger AJA.

24 I agree with the judgment and disposition together with my brother judges.

25 Subject to anything counsel may say, the orders of the Court will be as follows:

1. The application for reinstatement of the application for leave to appeal is allowed;

2. The application for leave to appeal is allowed;

3. The appeal is treated as instituted and heard instanter and is allowed.

4. The sentences passed below are quashed and in lieu thereof the applicant is re-sentenced as follows:

• On the first presentment, (No C 0504427.1), on Count 1 - burglary - to 15 months' imprisonment;

• On Count 2 - attempted burglary - to nine months' imprisonment;

• On Count 3 - burglary - to 15 months' imprisonment;

• On Count 4 - theft - to nine months' imprisonment;

• On Count 5 - burglary - to 15 months' imprisonment;

• On Count 6 - theft - to nine months' imprisonment;

• On Count 7 - burglary - to 15 months' imprisonment;

• On Count 8 - theft - to nine months' imprisonment;

• On Count 10 - burglary - to 15 months' imprisonment;

• On Count 11 - theft - to nine months' imprisonment;

• On Count 12 - conspiracy to commit burglary - 15 months' imprisonment;

• On Count 13 - burglary - to 15 months' imprisonment;

• On Count 14 - burglary - to 15 months' imprisonment;

• On Count 15 - theft - to nine months' imprisonment;

• On Count 16 - burglary - to 15 months' imprisonment;

• On Count 17 - theft - to nine months' imprisonment;

• On Count 18 - burglary - to 15 months' imprisonment;

• On Count 19 - theft - to nine months' imprisonment;

• On Count 20 - burglary - to 15 months' imprisonment; and

• On Count 21 - theft - to nine months' imprisonment.

The sentence imposed on Count 12 is treated as the base sentence and it is ordered that four months of each of the sentences imposed on Counts 1, 3, 5, 7, 9, 10, 13, 14, 16, 18 and 20 and two months of each of the sentences imposed on Counts 2, 4, 6, 8, 11, 15 and 17, 19 and 21 be cumulated on each other and on the sentence imposed on Count 12, making for a total sentence on that presentment of six years and five months' imprisonment.

• On the second presentment, (No C 0605182.1), the applicant is re-sentenced as follows. On Count 1 - burglary - to 18 months' imprisonment;

• On Count 2 - theft - to nine months' imprisonment; and

• On Count 3 - possession of a drug of dependence, cocaine - to one month's imprisonment.

And it is ordered that three months of the sentence imposed on Count 2 be cumulated on the sentence imposed on Count 1, making for a total sentence on that presentment of one year and nine months' imprisonment.

5. It is further ordered that six months of the total sentence imposed on the second presentment be served cumulatively upon the sentence imposed on the first presentment, making for a total effective sentence of six years and 11 months.

6. A non-parole period of five years and two months is fixed.

7 It is declared that the number of days already served under the sentence is 1718 days not including this day and it is directed that the fact that the declaration and its details be entered in the records of the Court.

8. The order made below to the disposal of burglary tools seized and the order made pursuant to s 464ZFB(1) of the Crimes Act 1958 are confirmed.

[1] R v Katsoulas [2008] VSCA 278.

[3] Ibid [1] (Neave JA), [16] (Redlich JA), [17] (Robson AJA).