Trajanovski v The Queen [2017] VSCA 81

1 The applicant, Billy Trajanovski, pleaded guilty in the County Court at Melbourne to one charge of theft, six charges of handling stolen goods, one charge of aggravated burglary, one charge of being a prohibited person possessing a firearm, one charge of being a prohibited person possessing an imitation firearm and three charges of possessing a drug of dependence. He also pleaded guilty to three related summary offences: one charge of possessing cartridge ammunition; one charge of going equipped to steal and one charge of dealing with property suspected to be the proceeds of crime.

2 The applicant, Mergin Kelmendi, pleaded guilty in the County Court at Melbourne to one charge of aggravated burglary, one charge of theft and one charge of being a prohibited person possessing a firearm. He also pleaded guilty to two related summary offences: committing an indictable offence whilst on bail and failing to report on bail.

Theft [s 74(1) of the Crimes Act 1958]

Handle Stolen Goods [s 88(1) of the Crimes Act 1958]

Handle Stolen Goods [s 88(1) of the Crimes Act 1958]

Aggravated Burglary [s 77(1) of the Crimes Act 1958]

Prohibited Person in possession of a firearm [s 5(1) of the Firearms Act 1996]

Prohibited Person in possession of imitation firearm [s 5 AB(2) Control of Weapons Act 1990]

Possess Drug of Dependence (methylamphetamine) [s 73(1) of the Drugs, Poisons & Controlled Substances Act 1981]

Possess Drug of Dependence (Cannabis L) [s 73(1) of the Drugs, Poisons & Controlled Substances Act 1981]

Possess Drug of Dependence (Hydroxybutanoic acid) [s 73(1) of the Drugs, Poisons & Controlled Substances Act 1981]

Handle Stolen Goods [s 88(1) of the Crimes Act 1958]

Handle Stolen Goods [s 88(1) of the Crimes Act 1958]

Handle Stolen Goods [s 88(1) of the Crimes Act 1958]

Handle Stolen Goods [s 88(1) of the Crimes Act 1958]

Possess cartridge ammunition [s 124(1) of the Firearms Act 1996]

Going equipped to steal [s 91(2) of the Crimes Act 1958]

Dealing with property suspected to be proceeds of crime [s 195 of the Crimes Act 1958]

9 years and 6 months imprisonment, with 7 year non-parole period

Other orders: Forfeiture, disqualification from obtaining a driver's licence for 6 years

Aggravated Burglary [s 77(1) of the Crimes Act 1958]

Theft [s 74(1) of the Crimes Act 1958]

Prohibited Person in possession of a firearm [s 5(1) of the Firearms Act 1996]

3 months or 30 penalty units [s 30B Bail Act 1977]

3 months or 30 penalty units [s 30B Bail Act 1977]

Ground 1: The sentence imposed is manifestly excessive.

Particulars

1.1 The learned judge erred, and his sentencing discretion miscarried in failing to take into account sufficiently sentencing practices with respect to the offence of aggravated burglary.

1.2 The learned judge erred, and his sentencing discretion miscarried in failing to take into account sufficiently the principles of totality and proportionality.

Ground 2: The learned judge erred, and his sentencing discretion miscarried by imposing a double punishment in respect of charge 7 namely the possession of a firearm as a prohibited person with charge 4 of aggravated burglary.

Ground 3: The learned judge erred, and his sentencing discretion miscarried in relying on uncharged acts as aggravating factors in fixing sentence.

Ground 1: The individual sentences, non-parole period and total effective sentence imposed on the applicant, infringe the principle of parity when regard is had to the sentences imposed upon the applicant's co-offender.

Ground 2: The learned sentencing judge erred in failing to properly characterise the applicant's culpability in respect of charge 4 in that his Honour sentenced the applicant on the basis of knowledge of the shotgun used by the co-offender.

Ground 3: The total effective sentence, non-parole period, individual sentence on charge 5 and cumulation in respect of it, are excessive and offend the principle of totality.

4 The sentencing judge had before him an agreed summary of facts. Briefly stated, in March and April 2016, each applicant committed a number of offences, primarily of dishonesty, but also some related matters.

5 On the night of 6 March 2016, or the early hours of the following morning, Trajanovski stole a BMW X5 car, valued at $14,000, from the driveway of a house in Deer Park. The owner of that car had misplaced his keys before leaving for an overseas trip. His wife noticed that the car was missing and reported it stolen. In the early hours of 6 April 2016, the stolen car was located by police at a hotel in Laverton. At that time it bore stolen Queensland registration plates. Trajanovski's fingerprints were located inside the car, as were those of his girlfriend.

6 On 12 March 2016, the Queensland registration plates that were later found attached to the BMW were stolen from a different black BMW car.

7 On 19 March 2016, Trajanovski was seen on CCTV footage at a McDonald's restaurant in Delahey. At that time he attempted to use a stolen National Australia Bank credit card to pay for his order. The credit card had been stolen during an aggravated burglary in St Albans in the early hours of the preceding day. The attempt to use the credit card failed, as the victim of the aggravated burglary had cancelled it.

Trajanovski and Kelmendi - Charge 4 - Aggravated Burglary

8 On the morning of 22 March 2016, Trajanovksi and Kelmendi, together with an unknown male, attended a house in Albion. Trajanovski was driving a black BMW SUV. Kelmendi and the unknown male arrived at the same time in a Holden utility vehicle. The two of them entered the house from the rear. The victim, 'DTV', was inside his home, alone, at the time. DTV says that he was not known to any of the offenders.

9 Trajanovski drove the BMW into the driveway and parked near the front door. He got out the vehicle, all the while armed with a concealed sawn-off long arm firearm. Meanwhile, Kelmendi, carrying a baseball bat, and the unknown male entered the house by forcing open the rear sliding door. Once inside they took possession of two Samsung laptop computers in a laptop bag.

10 Meanwhile, DTV hid in his bedroom. He was monitoring CCTV home surveillance footage on his mobile phone, and was aware of the fact that there were intruders in his house. He raced out through the front door, only to be confronted by Trajanovski, who was standing in the driveway. Trajanovski threatened him with the firearm, and ordered him to go back inside. He also demanded that DTV hand over his mobile phone, which DTV did. This was described as an 'uncharged act' on the part of Trajanovski.

11 Soon after, Kelmendi and the unknown male left the house. Kelmendi threw the laptop bag into the rear of the BMW, and Trajanovski drove off. Trajanovski was not charged with any offence involving the two computers.

12 On 13 April 2016, DVT's mobile phone was recovered from a house in Sunshine where Trajanovski had been staying with his girlfriend. A SIM card registered to his girlfriend had been inserted into the phone.

Kelmendi - Summary Offences - Committing indictable act whilst on bail and failing to report whilst on bail

13 At the time of the aggravated burglary and theft of the computers, Kelmendi was on bail. On 28 March 2016 he failed to report to police, as required under the terms of his bail.

Kelmendi - Charge 6 - Prohibited person in possession of a firearm

14 On 31 March 2016, Kelmendi was arrested whilst at a hotel in Kealba. He was searched and found to be in possession of an unloaded single barrel sawn off shot gun, which was tucked down the front of his pants. At the time he was a prohibited person pursuant to s 3 of the Firearms Act 1996.

Trajanovski - Charges 12 & 13 - Handling stolen goods

15 On 21 April 2016, Trajanovski was arrested at a motel in Parkville. He was found to be in possession of a car key to a stolen 2013 Holden Commodore which he was using at the time. The car had been stolen from a house in Croydon Hills on 16 March 2016 and was valued at $30,000. It bore registration plates which had been stolen from a car in St Albans on 13 April 2016.

Trajanovski - Charge 9 - Possession of a drug of dependence

16 Trajanovski was also found to be in possession of 3.4 grams of methylamphetamine.

Trajanovski - Summary offences - Possession of cartridge ammunition without lawful excuse - Prohibited person possessing firearm

17 Police found, in the cupboard of the motel room occupied by Trajanovski, a backpack which contained a loaded sawn off shotgun, an imitation pistol and a quantity of shotgun cartridges. They also found cable ties, a balaclava and a pair of gloves. At the time, Trajanovski was a prohibited person pursuant to s 3 of the Firearms Act.

Trajanovski - Charges 10 and 11 - Possession of a drug of dependence

18 Also located in the motel room was a duffle bag containing dried cannabis weighing about 927 grams.

Trajanovski - Charges 14 and 15 - Handling stolen goods - Summary offences - Going equipped to steal - Dealing with property suspected of being proceeds of crime

19 Located in the Commodore were two vials containing an illicit drug colloquially known as 'GHB', two stolen registration plates, various housebreaking implements, including a drill, a jemmy bar, and various other items suspected of being the proceeds of crime.

20 After setting out in some detail the circumstances surrounding the commission by each applicant of the offences charged, the judge turned to matters personal to them.

21 His Honour noted that Trajanovski was aged 37. He had been born in Australia. His parents separated when he was only seven. When he was 12, he was taken to Macedonia. He was educated only as far as year eight. He returned to Australia about five years later. Thereafter, he worked as a plasterer until 2005, when he suffered injury after falling from a ladder. He had not worked since then.

22 Trajanovski began using both methylamphetamine and cannabis on a regular basis.

23 Trajanovski had a significant criminal history, going back as far as 1997. It included numerous convictions for traffic violations of various kinds. Of more concern was the fact that it included a number of offences of dishonesty, ranging from small scale thefts to burglary. It also included convictions for intentionally causing injury and drug offences.

24 The judge referred to a report dated 7 July 2016 prepared by Dr Aaron Cunningham, a forensic psychologist. That report diagnosed Persistent Depressive Disorder, largely based upon Trajanovski's difficult upbringing and, in particular, the tragic death in 2013 of his former partner. The report accepted that this condition would make Trajanovski's time in custody more difficult for him.

25 The judge said that he would take this into account by way of mitigation. He also said that he took into account the early plea of guilty, which had significant utilitarian benefit. He referred to the principle of totality, but also to the need for general and specific deterrence.

26 The judge then moved to Kelmendi's personal circumstances. He noted that Kelmendi was 39, and that he had, as a child, lived for a number of years in Kosovo. From an early age, he had become involved in gang activity and used drugs.

27 Kelmendi then returned to Australia, where he was educated to year 12. However, he had had little employment since then. He met his ex-partner when aged 25. They had two children, both of whom lived with their mother. He used drugs regularly.

28 Like Trajanovski he had a lengthy criminal history. However, his record was significantly worse than that of Trajanovski, and his Honour described it as 'appalling'. It extended back to 1994, and included numerous offences of dishonesty and violence. He had been imprisoned a number of times.

29 After setting out the applicants' respective personal circumstances, the judge referred to various authorities dealing with sentencing for aggravated burglary. These included Hogarth v The Queen,[2] Perri v The Queen,[3] and DPP v Salih.[4]

30 In his written submissions, and his helpful oral argument, counsel for the applicant argued first, in support of ground one, that the cases upon which the judge relied to establish current sentencing practices for aggravated burglary were distinguishable, and should not have been given any great weight. He submitted that this was not a case of 'confrontational aggravated burglary', and moreover, that the value of the items stolen was relatively low. He referred to the Sentencing Snapshot for this offence, which showed a median length of imprisonment of three years, as compared with the five year term that his Honour fixed.

31 Counsel next submitted, in support of ground one, that the judge failed adequately to take into account the principle of totality, and the need for proportionality.

32 In support of ground two, counsel submitted that, by imposing a term of 30 months' imprisonment on charge 7 (prohibited person in possession of a firearm located in the motel room), and cumulating 18 months of that sentence upon the base sentence of five years' imprisonment for the aggravated burglary, the judge had 'doubly punished' Trajanovski. That was because the sawn-off shotgun found in the motel room was the same weapon as Trajanovski had used during the course of the aggravated burglary. Counsel referred in that regard to Armistead v The Queen.[5]

33 There was a second strand to counsel's reliance upon that case. He referred to the following passage in the judgment of Redlich JA regarding sentencing for possession of firearms. His Honour said:

Sentences in the order of two years for the offence of possession of an unregistered firearm whilst being a prohibited person are usually reserved for cases where the firearm is in fact used in the commission of an offence, or is possessed for a specific criminal purpose, or is 'associated with ongoing criminal activity'. Cases in which the possession cannot be so characterised normally attract sentences considerably lower than two years' imprisonment.[6]

34 It was submitted that this was not a case in which it could fairly be said that Trajanovski's possession of the sawn-off shotgun located in the motel room could properly have attracted more than the two years' imprisonment of which Redlich JA spoke.

35 It was further submitted that the judge must have treated the possession of the weapon as both an aggravating feature of the aggravated burglary, and separately the possession of that weapon[7] in the motel room some weeks later, as warranting a significant punishment in its own right. This was said to constitute 'double punishment'.

36 Finally, it was submitted in support of ground three that the judge had impermissibly treated the uncharged act (effectively the armed robbery of the mobile phone) as an aggravating factor, contrary to the decision of this Court in R v Newman.[8]

37 In that case, the co-offenders had pleaded guilty to aggravated burglary and intentional and unlawful damage to property. They appealed against their sentences, primarily on the basis that the sentencing judge had imposed sentences for the burglary which included components referable to an assault which occurred during the course of the burglary, but with which the offenders had not been charged. In allowing the appeal, the Court held that the common law principle that a sentencing judge is bound to take into account all the circumstances relevant to the commission of the offence with which the prisoner has been charged must, in appropriate circumstances, give way to a separate common law principle that a person cannot be sentenced for an offence with which he has not been charged or convicted. In this case, a review of the sentencing remarks demonstrated that, when sentencing the co-offenders, the judge had, in the forefront of his mind, the serious assault committed by them. This meant that he went beyond the permissible limits in considering the circumstances surrounding the commission of the offence.

38 Counsel who appeared for Kelmendi before this Court presented her argument in support of all three grounds in a succinct, and refreshingly clear, manner. Put simply, she submitted that the sentence of five years' imprisonment for Kelmendi's involvement in the aggravated burglary was excessive because it proceeded upon the unwarranted assumption that he had been aware of Trajanovski's possession at the time of the sawn-off shotgun, and party to the arrangement that it be brought to the house.

39 It was submitted that the judge was not entitled, on the evidence, to make any finding of that kind, and certainly not entitled to make such a finding 'beyond reasonable doubt'. Accordingly, parity was violated, given that both Trajanovski and Kelmendi received the same sentence for the aggravated burglary. The same point was made in support of grounds two and three.

40 In relation to Trajanovski, the Crown submitted that the total effective sentence of seven years and six months' imprisonment with a non-parole period of five years, as well as the individual sentences on each charge, were within range.

41 It was submitted that the aggravated burglary, in particular, was objectively serious. It was well planned, and carefully orchestrated. The offence was carried out in company. Moreover, the target was a residential house. Trajanovski was armed with a sawn off shotgun, and Kelmendi with a baseball bat. Trajanovski was disguised. The victim was, not surprisingly, terrified. Trajanovski had a significant and relevant criminal history.

42 It was next submitted that the judge had been correct to have regard to Hogarth and the other two comparable cases to which he referred. Counsel who appeared for Trajanovski on the plea did not proffer any alternative authorities as relevant to current sentencing practice. Nor did counsel seek, on the plea, to distinguish Hogarth, as was now being attempted before this Court. In any event, this was plainly a 'confrontational aggravated burglary'. A five year sentence for an offence of this gravity, imposed upon an offender with Trajanovski's record, could not be said to be outside the range.

43 Likewise, it was submitted that the sentence of 30 months' imprisonment imposed for the offence of being a prohibited person possessing a prohibited firearm was within range. The possession of that weapon some weeks after the aggravated burglary was itself a serious example of this offence, particularly since the shotgun was loaded when found.

44 As regards counsel's reliance upon Armistead, it was submitted that the possession of the weapon, in proximity to various items of housebreaking equipment (as well as cable ties), a balaclava, gloves and drugs, meant that the gun had been possessed for a criminal purpose or was 'associated with ongoing criminal activity'.

45 Finally, it was submitted in opposition to ground three that there was no basis for the contention that the judge had erroneously taken the uncharged act involving the theft of the mobile phone into account when sentencing Trajanovski.

46 Rather, his Honour merely summarised the agreed statement of facts when he referred to the mobile phone in his reasons for sentence. He identified the aggravating factors associated with the aggravated burglary and made no mention of a putative robbery, or theft.

47 In relation to Kelmendi, the Crown submitted that, as regards the aggravated burglary, this was a joint criminal enterprise, in which both Trajanovski and Kelmendi had played major and active roles. Kelmendi carried a baseball bat, and it would be unrealistic to think that he did so purely in anticipatory self-defence.

48 It was noted that Trajanovski had not been charged with the theft of the computers. It was postulated that this was because the prosecution had accepted that this theft was outside the scope of the joint criminal enterprise. The Crown identified the scope of that agreement as being to enable Kelmendi to recover a debt ostensibly owed by the victim.[9]

49 As regards Kelmendi's knowledge of Trajanovski's possession of the sawn off shotgun, it was submitted that the judge had been entitled to infer such awareness on his part. The aggravated burglary was well planned, the two vehicles having arrived together, and Trajanovski having played the specific role, pre-ordained, of keeping watch.

50 To the extent that counsel who appeared on behalf of Kelmendi on the plea had sought to distance her client from any such knowledge, it was submitted that the position then taken was based upon a misunderstanding of the nature of charge 7, that brought against Trajanovski alone. That charge related to possession of the weapon at the motel room a month later, not at the scene of the aggravated burglary.

51 Finally, the Crown submitted that even if the judge had erroneously treated Trajanovski's possession of the shotgun at the burglary as an aggravating factor in the case against Kelmendi, and even if that amounted to a material error, no different sentence would be warranted upon resentencing. Primarily, that was because of the gravity of the aggravated burglary, irrespective of whether it involved the presence of a gun, and Kelmendi's lengthy criminal history.

52 As regards Trajanovski, we would refuse leave to appeal on each of the three proposed grounds. We do so essentially for the reasons put forward by the Crown in both its written case, and in oral submissions.

53 The total effective sentence of seven years and six months' imprisonment, with a non-parole period of five years was within range. The individual sentences challenged before this Court, five years on the aggravated burglary, and 30 months on the possession of a prohibited weapon by a prohibited person, were also both within range.

54 The aggravated burglary was a serious example of this offence. It fell squarely within the principles laid down in Hogarth as to sentencing for 'confrontational aggravated burglaries'. The possession of the sawn off shotgun a month later, being a loaded weapon found in proximity with articles that showed an association with ongoing criminal activity, fully warranted a sentence of that order.

55 There was no element of 'double punishment' between the sentence imposed on the aggravated burglary and that imposed for the entirely separate offence of possession of the weapon a month later. The fact that it may have been the same shotgun does not alter the position.

56 There is nothing to suggest that Trajanovski was punished separately for having stolen the mobile phone, effectively an armed robbery. The reference in the sentencing remarks to what occurred was merely by way of explanation and summary of the prosecution opening.

57 The position regarding Kelmendi is different. It seems to us that the judge did treat Trajanovski's possession of the shotgun at the scene of the burglary as an aggravating factor, as it plainly was so far as Trajanovski was concerned. It could not be used as an aggravating factor in relation to Kelmendi unless his Honour was satisfied beyond reasonable doubt that Kelmendi was aware that Trajanovski had the weapon with him.

58 The fact that this was a carefully orchestrated joint criminal enterprise would not on its own have been sufficient to have justified the judge in making that finding of knowledge, on the part of Kelmendi, beyond reasonable doubt.

59 Assuming all this in Kelmendi's favour, there is still the question whether an error of that kind should vitiate the exercise of the sentencing discretion, thereby leading to the applicant having to be resentenced.

60 Section 281 of the Criminal Procedure Act 2009 provides that even assuming that error has been demonstrated, the Court must dismiss an appeal against sentence if it considers that no different sentence should be imposed.

61 Having regard to the objective gravity of this particular aggravated burglary, and Kelmendi's lengthy criminal record, we consider that, irrespective of whether he had actual knowledge of the fact that Trajanovski had with him a firearm, no different and lesser sentence to that of five years' imprisonment for that offence would be warranted.

62 The fact that Kelmendi attracted the same sentence as Trajanovski for the aggravated burglary, notwithstanding that Trajanovski had the shotgun with him, is still readily explicable upon the basis of Kelmendi's worse antecedents. Kelmendi also played the central role in this aggravated burglary, having entered the premises carrying the baseball bat. Kelmendi can have no justifiable sense of grievance at being treated in a comparable manner to Trajanovski.

63 We would grant leave to Kelmendi on each of his proposed grounds. We would, however, dismiss his appeal against sentence.

[1] Respondent's written case indicates 122 days declared, whereas DPP v Kelmendi & Trajanovski (Unreported, County Court of Victoria, Judge Chettle, 19 August 2016) ('Reasons for Sentence'), [82] and Applicant's Written Case indicate 120 days.

[2] [2012] VSCA 302; (2012) 37 VR 658. A sentence of four years and six months' imprisonment for aggravated burglary, in the form of a home invasion, was said to be entirely orthodox and within range. However, this Court spoke of the need to increase sentences for what were described as 'confrontational aggravated burglaries'.

[3] [2016] VSCA 89. In this case, this Court allowed an appeal against sentence on an aggravated burglary, and reduced it from six years and nine months to five years and six months' imprisonment.

[4] [2016] VSCA 107. This was a Crown appeal in which a five year Community Correction Order for aggravated burglary was set aside, and the respondent sentenced instead to a term of four years' imprisonment.

[5] [2011] VSCA 84.

[7] The Crown submitted that there was no evidence that it was in fact the same weapon as was used by Trajanovski in the aggravated burglary. We proceed on the basis that it was indeed the same weapon.

[9] This was a matter in dispute since DVT apparently denied having ever met, or known of, Trajanovski or Kelmendi.