Alejandro Mendieta-Blanco v The Queen
[2020] VSCA 265
•12 October 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0170
| ALEJANDRO MENDIETA-BLANCO | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2020 0186
| CHEY TENENBOIM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 September 2020 |
| DATE OF JUDGMENT: | 12 October 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 265 |
| JUDGMENTS APPEALED FROM: | [2018] VCC 1277; [2020] VCC 1319 (Judge Johns) |
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CRIMINAL LAW – Appeal – Sentence – Receiving stolen goods – Sentencing procedure – Principle of parity – Weighting of mitigating factors – Comparison of mitigating factors of co-accused – Manifest excess – Sentence only manifestly excessive where wholly outside available range – Manifest excess of disparity in sentences of co-accused – Manifest inadequacy in sentences of co-accused – Sentencing not a mechanical exercise – De Simoni principle – Sentencing assessment confined to charges on the indictment – Relevance of accused’s role in creating context for own offending to assessment of seriousness – Extra-curial punishment – Impact of COVID-19 pandemic on sentencing – Family hardship as a standalone sentencing consideration – Leave to appeal refused – R v De Simoni (1981) 147 CLR 383 considered; Nipoe v The Queen [2020] VSCA 137, Clarkson v The Queen (2011) 32 VR 361, House v The King (1936) 55 CLR 799 applied – Crimes Act 1958 s 88, Second-Hand Dealers and Pawnbrokers Act 1989 ss 19, 20.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Mendieta-Blanco) | Ms R Shann with Ms C Boston | Furstenberg Law |
| For the Applicant (Tenenboim) | Mr D Grace QC with Dr M Fitzgerald | David Grace QC |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA
T FORREST JA:
Introduction
The applicants, Alejandro Mendieta-Blanco (‘AMB’) and Chey Tenenboim (‘CT’), were associated with a business called Sell Your Gold Pty Ltd. The business traded in gold, diamonds, precious gems and luxury watches. A large part of the business involved the purchase of gold jewellery from members of the public. Each applicant pleaded guilty to one rolled-up charge of receiving stolen goods, as did a third person, Julio Mendieta-Blanco (‘JMB’), who is not the subject of an application for leave to appeal. The three men were sentenced in the County Court as follows.
AMB
Offence Legislation Maximum Sentence Receiving stolen goods Crimes Act 1958 s 88 15 years 4 months’ imprisonment +
2-year CCO (200 hours)s 6AAA declaration 24 months’ imprisonment, with a non-parole period of
12 monthsPre-sentence detention Nil CT
Offence Legislation Maximum Sentence Receiving stolen goods Crimes Act 1958 s 88 15 years 12 months’ imprisonment +
2-year CCO
(200 hours)s 6AAA declaration 4 years’ imprisonment, with non-parole period of
2 years 6 monthsPre-sentence detention 32 days JMB
Offence Legislation Maximum Sentence Receiving stolen goods Crimes Act 1958 s 88 15 years 2.5-year CCO s 6AAA declaration 20 months’ imprisonment, with non-parole period of 10 months Pre-sentence detention Nil
The applicants seek leave to appeal on the following grounds.
AMB
Ground 1
The learned sentencing judge impermissibly aggravated the applicant’s sentence on the account of offences committed by others, in breach of the principle in R v De Simoni.
Ground 2
The applicant was denied procedural fairness.
Ground 3
The sentence imposed upon the applicant gives rise to a justifiable sense of grievance when compared with those imposed upon his co-accused.
Ground 4
The learned sentencing judge erred in failing to give effect to the principle that, where a person is on the cusp of being sentenced to a term of imprisonment, the COVID-19 pandemic presents a powerful reason not to impose a sentence requiring that the person be incarcerated.
Ground 5
The sentence is manifestly excessive in light of the applicant’s early guilty plea, prior good character and increased burden of imprisonment, the three-year delay in the matter being finalised, and other factors in mitigation.
CT
Ground 1
The sentence imposed upon the applicant is manifestly excessive in respect of the sentence of 12 months’ imprisonment in all the circumstances of the offence and of the applicant.
Ground 2
The learned sentencing judge erred in finding that the applicant had circumvented his obligations under the Second-Hand Dealers and Pawnbrokers Act 1989.
Ground 3
The learned sentencing judge erred in imposing a sentence of 12 months’ imprisonment that was manifestly disparate to the sentences imposed upon the applicant’s co-accused, thereby giving rise to a justifiable sense of grievance and a miscarriage of justice.
Summary
The following summary has been extracted from the Amended Prosecution Plea Openings tendered at both applicants’ plea hearings. The business was located on Level 11, Suite 1102, 227 Collins Street, Melbourne. As at 21 June 2020, AMB was the director and secretary of Sell Your Gold Pty Ltd. The actual ownership of the company is obscure, although it is undisputed that AMB was the sole director of the company and was effectively the managing director. He started the business in 2012.
The lawful day-to-day business of the company involved purchasing gold jewellery, precious gems including diamonds, and valuable watches from members of the public. The business held a second-hand dealers’ licence and the purchase price for the gold jewellery was based on carat (the quality of the gold) and weight. A price was calculated, usually on the spot, and if a transaction was agreed a cash payment would then be made to the customer. The Second-Hand Dealers and Pawnbrokers Act 1989 (‘Second-Hand Dealers Act’) required the business, inter alia, to require and record identification from each customer and to record the details of every such transaction.[1] The purposes of the Act include discouraging persons from attempting to sell stolen goods and assisting police in recovering stolen goods.[2]
[1]Second-Hand Dealers and Pawnbrokers Act 1989 ss 19–20.
[2]Ibid s 1.
A practice developed at the business of accepting ‘off-book’ transactions. Customers would bring in stolen goods of the type in which the company dealt.
A cash payment would be negotiated. By agreement, the transaction would not be recorded and no identification would be produced. The cash price paid for the stolen goods would be at a discount to the normal market price for an orthodox ‘book entry’ transaction.
In May 2017 a police investigation into the business was commenced. Lawfully authorised surveillance devices and telephone intercepts were installed. The surveillance device captured activity at one of the service counters from
28 August 2017 until the execution of search warrants on 5 October 2017. The following transactions were captured:
·CT participated in 42 transactions over the period. In each transaction he knowingly received stolen goods. None of these transactions were recorded and no identification was produced. The total amount paid by him for these stolen items was $144,638.
·JMB participated in seven transactions over the period. Each transaction involved the payment of cash for goods he knew to be stolen. None of these transactions were recorded and no identification was produced. The total amount paid by JMB for these items was $18,320.
·
Additionally, JMB participated in two transactions with CT during which $26,890 was paid for stolen goods. Thus JMB participated in nine transactions involving a total payment of $45,210. These nine transactions took place between
21 September 2017 and 3 October 2017.
·AMB, individually, participated in three transactions in which he paid a total of $1,800 for goods, knowing them to be stolen. No record of the transactions was made and no identification was produced. He was also complicit in a further transaction with CT in which $27,200 was paid for stolen goods. Thus AMB participated in four transactions involving cash payments totalling $29,000.
·Both applicants and JMB were aware that the other men were receiving stolen goods, although each was not aware of the extent of the others’ criminality.
When stolen gold jewellery was transacted it was promptly melted down into gold bars, thus frustrating identification and facilitating the on-sale of the gold.
AMB commanded an annual salary of $365,296.80. JMB carried out customer service duties and occasionally served customers. His annual salary was $65,000. CT was the most active customer service employee and was paid an annual salary of $200,000.05. He also received a 30 per cent ‘cut’ on each transaction. In a recorded conversation with a police operative he claimed to be a partner in the business. These salary figures did not include profits from illegal ‘off-book’ transactions.
Customers with stolen property to transact were instructed to use coded language if they telephoned the business. Covert police operatives, posing as customers, were instructed to put their mobile telephones in a bag designed to block mobile phone reception. Customers were asked to whisper or remain silent during transactions and the applicants (and JMB) whispered during unlawful transactions.
Profit was derived, not only from buying the stolen goods at a discount to their open market value, but also from undervaluing the open market value in the first place. CT explained this to an employee, JP:
SK means we skim the customer … so we don’t always pay what’s on the website. We have to gauge the customer … If someone comes and they look like a junkie …
CT then explained that this type of customer would often not know what he or she possessed, and in this circumstance it would be valued at 9 carat, even though it may be 18 carat. During this conversation, AMB called out from his office, ‘JP, every time you do it we’ll give you a commission.’ Later, AMB advised CT that he should teach the employees how properly to conduct unlawful transactions and ‘then, we should give them a cut.’
It is unnecessary to set out the precise details of all 107 unlawful transactions. They are contained in the Amended Prosecution Plea Openings tendered at the plea of each applicant. Each dishonest transaction was captured in a rolled-up charge. It follows that AMB’s receiving charge rolled up four transactions, CT’s receiving charge rolled up 42 transactions and JMB’s receiving charge rolled up nine transactions.
The plea hearings
We shall set out a short summary of the more significant matters raised in each applicant’s plea.
Submissions made on behalf of AMB
·Charge 1 is a rolled-up charge. The applicant does not stand to be sentenced for any other conduct either the subject of other charges against the other offenders, or the subject of the investigation.
·AMB is 34, academically gifted (he completed the equivalent of Year 12 at 15 years of age) and of Colombian origin. He came to Australia at 16 with little English and no family. He commenced and completed a chef’s diploma, worked as a chef in high-end restaurants, and worked a second job as a cleaner.
·He obtained permanent residency in Australia in 2006 when he was aged 20. He entered a relationship with KF and they subsequently married. He has two children from that relationship. They separated in 2016.
·In 2007 he started a business supplying coin-operated massage chairs. He also started his first gold-buying business in that year — ‘Sell Your Gold’. In 2011 he set up his first gold-buying shopfront and in the same year he moved to the Collins Street address.
·He has contributed significantly to charitable causes as his business has flourished.
·While the value of the stolen goods handled by the applicant cannot be known precisely, the amount he paid for them was $29,000.
·It was conceded that the rolled-up offence was committed in the course of running a business as a licensed second-hand dealer and that these circumstances occasion, to some degree, a breach of trust.
·It was also conceded that the offending was motivated by financial gain.
·AMB is ‘not to be sentenced for conducting a criminal business’. Any such allegation ceased with the withdrawal of the conspiracy charges.
·It is intemperate, inaccurate and inflammatory to contend (as the Crown did) that AMB operated a business which provided ‘an essential service to the thieves of Melbourne’. He stood to be sentenced for the discrete receiving charge on the indictment.
·Reference to AMB’s salary is irrelevant and tendentious.
·Assertions that AMB was ‘aware but not complicit’ in CT’s and/or JMB’s offending cannot aggravate AMB’s offending. Either he was complicit in their offending (which is not alleged) or he was not.
·The value of the goods transacted was modest.
·AMB’s plea was made at the earliest stage possible, bearing in mind he originally faced 450 charges. As soon as it was determined not to proceed with the conspiracy charges he offered to plead guilty to the charge the subject of the indictment.
·His plea has a significant utilitarian benefit.
·AMB has no prior or subsequent convictions and is a person of good character.
·There has been substantial delay. Its cause cannot be attributed to the defence. For over three years, AMB has had the spectre of the charges hanging over him and has also had to comply with bail conditions.
·AMB has been the subject of widespread media interest which amounts to an extra-curial punishment.
·Outcomes short of imprisonment are within range and appropriate.
Submissions made on behalf of CT
·On 42 occasions between 28 August 2017 and 3 October 2017, CT received stolen goods. $144,638 was paid to the sellers of jewellery, watches, precious metals and stones.
·CT accepted the description of each transaction in the prosecution Plea Opening. He was assigned the role of dealing with the majority of customers. At all times he was an employee receiving an excellent salary.
·The vast majority of transactions conducted by CT while employed by the business were lawful and properly entered in the company’s books.
·In the relevant financial year (2016/2017), in addition to his salary, CT would have earned $128,000 in lawful commissions.
·As a consequence of the offending, the business folded in 2019 and CT was deprived of a lucrative job. He did not need the extra income derived from his unlawful activity and neither did the company.
·CT conceded that his behaviour was dishonest, reckless and foolish. He has been publicly humiliated by the extensive media coverage.
·CT was raised in an Orthodox Jewish family and, as at the date of sentence, was 39 years old. He has five siblings, his father died by suicide in 2016, and his 70-year-old mother keeps poor health.
·CT suffers from severe scoliosis of the spine and experiences discomfort if sitting or standing for lengthy periods. He suffers from severe psoriasis.
·His father conducted a jewellery business and CT worked in the business part-time while at university. He went to Israel to obtain a diploma in diamond grading and completed a diploma course in Australia in gemmology, and then completed a valuer’s course. He is a fellow of the Gemmological Association.
·He is married with four children. His wife and each child suffer from significant health problems.[3] All members of the family practise the Jewish religion and attend their local synagogue regularly. There are significant stressors on the family, and CT’s wife Miriam is acutely anxious at the prospect of her husband’s incarceration.
·CT and his wife have commenced a new business dealing in laboratory-grown diamonds. It appears to have sound prospects.
·As a consequence of his widely publicised arrest, CT was unable to settle on a property he had agreed to purchase. As a consequence he lost $284,500 as a forfeited deposit. This, coupled with the significant loss of income,[4] resulted in an actual loss of $700,000. Further, the DPP is seeking forfeiture of property now frozen and which belongs to CT and his wife. This is unresolved. It is likely total losses will be over $1 million.
·CT’s plea of guilty should be treated as an early plea, and is evidence of contrition. It also has a substantial utilitarian value.
·The third party hardship imposed on CT’s family, should he be imprisoned, amounts to exceptional circumstances justifying a significant exercise of mercy. Alternatively, if exceptional circumstances are not demonstrated, the same circumstances will add to the burden of imprisonment resulting from CT’s anxiety and concern for his family during his incarceration.
·CT conceded general deterrence is a significant factor but contended personal or specific deterrence is not necessary and his prospects for rehabilitation are excellent.
·CT has no prior criminal convictions, has made significant community contributions, and tendered many powerful character references.
·If the Court were of the view that a prison sentence was inevitable it should be no greater than three months, and coupled with a Community Corrections Order (‘CCO’).
[3]These are set out at [19] below.
[4]Income tax returns were tendered.
Judge’s Reasons
Before summarising the judge’s reasons for sentence in each applicant’s case, it should be acknowledged that his Honour’s conduct of the pleas and his reasons for sentence in respect of all three men are models of clarity and balance.
Judge’s reasons for sentence — AMB
In assessing the sentence imposed on AMB, the circumstances and context of the offending were central to his Honour’s assessment of its objective gravity. His Honour noted:
·AMB’s role and stature in the company: he was its owner and operator,[5] and ‘set the tone and culture of the business’;
[5]Since the plea hearing, the applicant has clarified that, while he was a director of the company, he was not a shareholder, and therefore not in fact an owner. Given his overall role in the operations of the company, his salary, the fact that he started the company, the fact that he was its sole and managing director and the fact that his counsel conceded that his offending was ‘in the course of running a business as a licensed second-hand dealer’, the distinction between managing director and owner is not significant.
·the nature and likely provenance of the stolen property, being likely to be ‘highly prized personal items of great sentimental value’, stolen during domestic burglaries;
·the ‘significant’ amounts the applicant paid for the stolen property: a total of nearly $30,000 for four incidents embraced by charge 1;
·that the stolen goods were no doubt worth much more than what the applicant had actually paid for them;
·the applicant’s awareness of the second-hand dealer’s obligations, and his responsibility for the company’s adherence to them;
·the applicant’s breach of trust in committing the offences in the context of operating a business which held a second-hand dealer’s licence;
·the applicant’s awareness that his offending would be unlikely to be detected given that most of the subject stolen property would be unidentifiable once melted down;
·there were no factors mitigating the seriousness of the offending: his Honour found the offending was ‘deliberate and considered’, and, committed in the context of a prosperous and robust business, ‘a motive of greed was the only reasonable explanation’;
·the brazenness and lack of compunction with which the offending was carried out, as revealed by the evidence of recorded conversations; and
·that despite ‘persuasive’ arguments from AMB’s counsel that the overall value of the stolen property made the offending akin to a first-time offender who had bought a stolen car or caravan, the subject matter of the offending brought it into a particular category with serious aspects. General deterrence and denunciation were very significant factors not able to be met by a lengthy CCO alone.
His Honour set out AMB’s personal circumstances:
·The applicant was 34 years old at the time of sentencing, and was born in Colombia.
·The applicant’s personal history marks him as ‘extremely gifted, resourceful and driven’: he completed school at the age of 15 (two years early), and travelled to Australia alone at age 16 in 2002. Commencing as an office cleaner, he worked his way up through a series of menial jobs, often holding down two at a time, while also studying and earning several qualifications. He started his first business and got into the gold buying business in 2007.
·The applicant met and married his ex-partner in 2005, and the couple had two children together. His Honour accepted that their divorce in 2018 took a significant personal and emotional toll on the applicant.
·The applicant has done significant charity work, on which he has personally outlaid $20,000 of his own money to date and which he has continued whilst on bail.
·Letters of commendation were tendered from those who knew the applicant, including two medical practitioners who spoke highly of him.
His Honour considered that these matters weighed favourably in terms of AMB’s prospects of rehabilitation.
Further matters of mitigation included:
·the applicant was a first-time offender, and this would be his first experience of custody;
·
the applicant’s early guilty plea, the utilitarian value of which was increased in the context of strain on the courts
imposed by the current pandemic;
·
the increased hardship of custody caused by the
COVID-19 pandemic;
·the three-year delay due partly to the pandemic, and the applicant’s commendable conduct during this period; and
·two aspects of extra-curial punishment: the ‘extreme’ media reporting of the case, and the seizure and freezing of the applicant’s assets during the three years between his being charged and sentenced.
Parity
The judge addressed the parity principle, both in respect to the penalties imposed on the two applicants, as well as JMB. There was a call for disparity in the sentences imposed upon each applicant for the following reasons:
·
the charge against CT embraced a far greater volume of
rolled-up offences — 42 as opposed to four — and he had paid a great deal more money in purchasing stolen goods — about $144,000 as opposed to about $30,000;
·while both applicants’ personal circumstances were ‘in the same orbit’ in terms of their role in the company, background, experience and qualifications, it was AMB who had the responsibility for the company’s adherence to the second-hand dealer’s obligations;
·the personal mitigation available to CT was slightly greater than in AMB’s case: including the heavier burden of imprisonment, the demonstration of remorse, and his ability to more precisely identify the financial extra-curial punishment he had incurred; and
·AMB’s moral culpability was greater than JMB’s notwithstanding that JMB involved himself in a greater number of unlawful transactions both by quantum and frequency. This was because the judge found AMB employed JMB, and JMB was not in a position to shape the culture and practice of the company. JMB’s position in the company hierarchy was reflected in his salary.
Ultimately, his Honour concluded that a relatively short term of imprisonment (four months) with a two-year (200 hours) CCO was an appropriate disposition.
Judge’s reasons for sentence — CT
In assessing the objective gravity of CT’s offending, his Honour took into account:
·the applicant’s status and ‘integral’ role in the business and the use of his experience and knowledge as an assessor and valuer of gold and diamonds in furtherance of the offending;
·
the high number of instances of offending (comprising
42 separate instances) and its indiscriminate nature;
·the nature and likely provenance of the stolen property — that is, items of sentimental value procured through domestic burglaries;
·the ‘significant’ amounts the applicant paid for the stolen property, characterising the offence of receiving stolen goods as demonstrating a significant level of criminality;
·that the stolen goods were no doubt worth much more than the applicant had actually paid for them;
·the applicant’s awareness of the second-hand dealers’ obligations;
·the applicant’s awareness that his offending would be unlikely to be detected;
·the applicant’s breach of the position of trust he held with the general public by dint of his training and position in the field of gold, jewellery and precious gem valuation;
·there were no factors mitigating the seriousness of the offending: it comprised ‘repeated deliberate acts of dishonesty’, and was ‘purely greed driven’;
·the apparent lack of shame or compunction with which the offending was carried out, as revealed by recorded conversations submitted in evidence; and
·the impact of the offending on its victims.
His Honour also considered CT’s personal circumstances:
·CT was 39 years old at the time of sentencing. He was born in Sydney into a highly religious family, and his father had been a jeweller.
·The applicant was studious at school and excelled in mathematics. He completed one year of a social sciences degree at university, after which he joined his father’s business and eventually qualified as a registered valuer of the National Council of Jewellery Valuers of Australia. He is now a fellow of the Gemmological Society of Australia.
·From the age of 11, the applicant experienced severe physical developmental ailments, with the result that he still experiences restrictions in handling heavy items and discomfort in standing or sitting for long periods. He also suffered severe psoriasis and uses cortisone cream and lotions daily.
·In 2005, the family jewellery business was subject to an armed robbery, during which the applicant was tied up and his father was bashed with a gun, requiring hospitalisation for some time afterwards. The entire contents of two safes were stolen, representing the applicant’s father’s entire life savings and an amount far greater than was covered by insurance. The serious financial ramifications of this led to extreme pressure from an associate of the applicant’s father, including death threats. In 2006, the applicant’s father’s body was discovered in Sydney Harbour. A coronial inquest found that the manner of death was suicide. Apart from the ongoing stress at the devastating loss of his father which the applicant still experiences, he continued to receive threats and demands for money from one of his father’s creditors for 18 months after his father’s death. His Honour accepted that the applicant has experienced significant trauma as a result of the robbery, the death of his father and its circumstances, and the ongoing demands and threats the applicant received himself.
·The applicant is married and has four children. All members of his family suffer significant health problems. His wife, Miriam, suffers severe anxiety, exacerbated by the trauma of the applicant’s arrest at home on a Jewish holiday, and the ongoing stress of the ensuing court proceedings. His eldest, second and youngest children all suffer from a genetic disorder, osteogenesis imperfecta, which causes brittle bones. His oldest child also suffers severe anxiety. His third child is on the autism spectrum.
·While his Honour viewed as relevant the consequences of the applicant’s arrest, the court proceedings and his current and future incarceration for his family, who already faced severe challenges, he did not find that the ‘confluence of circumstances [falling] under the banner of “family hardship”’ were ‘exceptional’ such that they became a standalone sentencing consideration.
·The applicant’s own health problems, as well as those of his family and their dependence on him, will increase the hardship of custody for him.
His Honour also took into account the mitigating factors of:
·the fact that CT was a first-time offender, and this would be his first experience of custody;
·the extra-curial punishment incurred by both the financial ramifications of the applicant’s offending, which were ‘very significant’, and the media coverage of the initial allegations;
·the applicant’s early guilty plea, which, like AMB’s, had greater utilitarian value due to the context of the pandemic;
·the increased hardship of custody caused by the COVID-19 pandemic;
·the three-year delay due partly to the pandemic, and the applicant’s commendable conduct during this period; and
·the applicant’s previous good character, his work history, skills and professional standing, the remorse evinced in his early guilty plea and a psychological report, all of which indicated good prospects of rehabilitation.
As in AMB’s case, his Honour considered general deterrence a very significant factor and that this could be met by a combination sentence of a term of imprisonment and a CCO. The additional ‘shame and humiliation’ of the work component of a CCO for a person in CT’s circumstances would serve as an important deterrent to others.
This appeal
Consideration — AMB
Ground 1
The learned sentencing judge impermissibly aggravated the applicant’s sentence on account of offences committed by others in breach of the principle in
R v De Simoni.
The essence of this complaint is that when assessing the objective gravity of the applicant’s offending, the judge erred in including in that assessment that the applicant was a ‘hands on’ operator of the business, ‘in a position to set the tone and culture of the business’.[6] Thus, so the argument was developed, the judge aggravated his assessment of the objective gravity by taking into account the offending of others committed within that culture. Further, broad conspiracy charges were withdrawn as part of the plea negotiations after which AMB pleaded guilty to a confined charge, meaning he could not be sentenced for conduct that would warrant conviction for a more serious offence (contrary to the De Simoni principle).[7] The ‘tone and culture’ was irrelevant to the judge’s sentencing task, save that it could be used to rebut an argument that AMB’s offending was a one-off aberration — it was evidence of the absence of a mitigating factor rather than evidence that aggravated the offending.
[6]DPP v A Mendieta-Blanco [2020] VCC 1319, [9] (Judge Johns) (‘Reasons (AMB)’).
[7]R v De Simoni (1981) 147 CLR 383 (‘De Simoni’).
In our view this ground must be rejected. The judge took some pains to articulate the precise basis upon which he sentenced all three men. In relation to AMB, he said:
Your role was such that you were in a position to set the tone and culture of the business. By that I mean you were a ‘hands on’ owner-operator. You were not only well-aware of the second-hand dealers’ obligations — adherence to [their] requirements was part of your responsibility notwithstanding the second-hand dealers’ licence was in the company’s name.
This is the context within which you offended. You are not to be sentenced for the crimes of Mr Tenenboim, [nor] for those of your brother Julio. You are not to be sentenced for uncharged acts or knowledge of the misdeeds of others. Nor are you sentenced as a person who ran a business which incorporated the illegal activity of receiving stolen goods with the wider, lawful operations of the business. The context is relevant to assessing your moral culpability for the instances of dishonesty embraced by the charge. The context is also relevant to my assessment of the need for denunciation of your crime and general deterrence. Your position of responsibility and ownership are central to your criminality.
In identifying the context and circumstances of your offending I have had regard to not only your role within the company, but also some of the matters revealed by the recorded conversations, referred to in the Prosecution summary …
These conversations reveal much about your leadership within the business and the gravity of your offending. Your acts of receiving between August and October 2017 were not aberrations or mistakes, perhaps made in the heat of the moment or made under some psychological pressure that reduced your inhibitions. They reveal the absence of a moral compass. They revealed the brazenness of your offending, and the fact that the acts were committed by the owner of the company in manner consistent with the culture and ethos of the company that you observed and fostered.[8]
[8]Reasons (AMB) [9]–[12].
We consider that this approach is entirely in line with orthodox sentencing principle. The judge was entitled to consider the context in which AMB’s offending took place. AMB’s responsibility for a culture of greed and dishonesty informed the judge’s assessment of his offending within that culture. It did no more than that. Contrary to the applicant’s contention, it did not involve sentencing AMB for the offending or wrongdoing of others. If, for example, JMB’s moral culpability fell to be assessed as occurring in a dishonest culture that was not of his making (and in our view this fact is highly relevant to that assessment), then there is no valid reason why AMB’s moral culpability should not be the subject of the same scrutiny. There is no breach of the De Simoni principle,[9] and no error of principle has been established. The context of greed and dishonest practices was relevant as it was capable of informing such aspects of the offending and sentencing as motive, planning, the need for specific deterrence and the prospects for rehabilitation.
Ground 2
[9]The High Court in De Simoni laid down the principle that a judge’s sentencing task is confined to those which form part of the indictment — they may not take into account circumstances which would have warranted conviction for a more serious offence to impose a heavier penalty for the instant offence: at 389 (Gibbs CJ).
The applicant was denied procedural fairness.
AMB contended under this ground that, even if ground 1 is not established, the judge ought to have informed counsel of his intention to reason in the way he did about AMB’s contribution to the culture and control of the company and its context in respect to specific offending. This ground is unsustainable. The joint plea hearings of the applicants and JMB commenced on 17 July 2020. Extensive submissions were made by Mr Grace QC,[10] representing CT. The further hearing was adjourned until 31 July 2020. At the outset of that day the judge stated:
And I’m just saying I’m going to just raise some matters myself at this point, given we’re one plea in. But certainly there may be some other matters that Mr Grace wants to address me on at some point.
I’ve reflected on a number of the matters that have been raised. I’ve had a deeper look at the prosecution opening, I’ve had a deeper look at the submissions of the defence that were relied on, on the last occasion and the matters in support.
So I’m going to raise some matters and I stress that these are only preliminary views or concepts, I’m not making any particular findings or rulings. And of course, everyone’s got an opportunity to address me.
[10]Who appeared with Dr Michael Fitzgerald.
Shortly after this, the following exchange between his Honour and
Mr Hannebery QC,[11] representing AMB, took place:
[11]Who appeared with Dr Gideon Boas.
HIS HONOUR: I think, coming back to some of the comments I made, I accept your general proposition that I’ve got to be careful not to punish beyond the indictment. Context is relevant to my assessment of the moral culpability in particular. That context can’t be regarded as a context of ongoing criminality that’s not charged.
MR HANNEBERY: Yes.
HIS HONOUR: But in the context my view is that the instances that fall within the charge your client faces demonstrate audacity, brazenness, breach of trust, no compunction. In a different context a different spin might be able to be put on it.
MR HANNEBERY: That’s right.
HIS HONOUR: If you were in the Magistrates’ Court with a 34-year-old father with a garage full of some stuff he’d picked up from the pub you might be able to put a different spin on it, but I think that observation is open and the context is relevant in making that assessment.
MR HANNEBERY: Yes. I ---
HIS HONOUR: The permissible context.
This latter passage demonstrates that counsel for AMB was on notice that his Honour regarded the practices and culture of the business as informing his assessment of each offender’s moral culpability. Indeed, Mr Hannebery, on behalf of AMB, addressed his Honour on that issue at some length. Whilst Mr Hannebery may have disputed his Honour’s characterisation of the relevance of context, it cannot be sensibly maintained that he was somehow blindsided by it. This ground must be rejected.
Ground 3
The sentence imposed upon the applicant gives rise to a justifiable sense of grievance when compared with those imposed upon his co-accused.
In written submissions, AMB provided a helpful table which set out various points of comparison between AMB, CT and JMB. It is convenient to reproduce it.
JMB AMB CT Sentence 2.5-year CCO (250
hours)
4 months’ imprisonment + 2-year CCO
(200 hours)
12 months’ imprisonment + 2-year
CCO (200 hours)
Transactions 9 transactions totalling $45,210
- $18,320 personal
- $26,890 complicit (two of CT’s transactions)
4 transactions totalling
$29,000
- $1,800 personal
- $27,200 complicit (one of CT’s transactions)
42 transactions totalling $144,000
- All personal
Duration 12 days 13 days 5 weeks Position at SYG Employee – Project Manager
Experienced in the trade
Salary + commission. Expectations of equity
Had some vested interest in the growth of the company
A Director at one stage
Owner-operator
Adherence to second- hand dealers’ obligations part of his responsibility
Employee — Salary + commission
Experienced valuer and assessor of gold and diamonds — essentially grew up in the trade
Integral part of the business/instrumental to operation
Told covert operatives that he and AMB owned the business
Aware of second-hand dealers’ obligations Yes Yes Yes Likely included sentimental items Yes Yes Yes Motive greed Yes Yes Yes Knew hard to detect Yes Yes Yes Moral culpability High. Slightly lower
than the applicant’s
Age (offence) 34 31 36 Criminal record No No No Good character Not explicitly raised but generally accepted Accepted
Considerable charitable work since 2016
Accepted Guilty plea Early
Significant utilitarian value (Covid-19)
Demonstrates remorse
Early
Very significant utilitarian value: far more pronounced due to the Covid-19 pandemic
Early
Significant utilitarian value (Covid-19)
To some degree reflective of remorse
Remorse Deep and genuine
Submitted on plea
Implied that remorse not accepted
Some remorse Delay 3 years 3 years
Hung over head
Abided by strict bail conditions
Did not re-offend
Contributed to community
3 years
Hung over head
Did not re-offend
Contributed to community
Prospects of rehabilitation Excellent/very good
Educational background, work history, contrition and remorse give strong confidence regarding prospects of rehabilitation
Good
Impressive background gives confidence as to rehabilitation
Good Additional punishment Media attention resulted in social media abuse
Strong prospect that would lose opportunity to pursue career in medicine
Widespread media coverage was extreme and largely related to a prosecution case which diminished considerably. Caused distress, embarrassment, shame, loss of reputation, loss of opportunity and the pain of public condemnation and opprobrium
Restraint of finances over three-year period
Lost substantial amount of money through inability to get loan
Could not recover house deposit.
Increased burden of imprisonment N/A Covid-19
First time in custody
Covid-19
First time in custody
Imprisonment more burdensome to some degree due to physical ailments
Weighed very heavily on him that he left behind a large and dependent family and would miss son’s bar mitzvah
Mercy Yes Yes Yes
AMB submitted that, all things considered, the respective criminality, antecedents, personal circumstances and mitigating factors led inexorably to a conclusion that the degree of disparity in relation to the sentence imposed upon JMB is too great, whilst the degree of disparity with CT’s sentence is too little. Put another way, AMB’s four months’ imprisonment and 200-hour CCO is:
(a) too far from JMB’s 250-hour CCO; and
(b) too close to CT’s 12 months’ imprisonment and 200-hour CCO.
It was contended that, whilst AMB deserved a more severe sentence than JMB, this could and should have been achieved through a longer and more onerous CCO.
In our view the judge was well aware of the principle of parity and gave it appropriate consideration. In his reasons for sentence, the judge said:
I have considered parity. The disparity that is called for between the sentence I imposed upon Mr Tenenboim and the appropriate sentence in your case is clear given the disparate circumstances of the offending:
(a)The charge Mr Tenenboim faced embraced 42 rolled up occasions of handling. He outlaid $144,000 to purchase the stolen goods.
(b)The circumstances of his role, background, experience and qualifications are in a similar orbit to your circumstances however, ultimately it was you who had responsibility for compliance with the second-hand dealers’ obligations.
(c)The personal mitigation available to Mr Tenenboim was slightly greater than in your case. The burden of imprisonment will weigh heavier upon him. He had demonstrated some remorse. The financial extra-curial punishment in his case was precisely identified.
Your brother Julio is older than you, but you were his employer. His role in the company was not one of seniority although he was a director at one time. His salary reflects his position in the company. The quantum and frequency of his receiving stolen goods exceeded yours — however he was not in the same position of trust. It was not apparent to me that he was in a position to shape the culture and practices of the company. He followed the practice, during that period of offending, that was observed and encouraged within the company.
I have concluded that his moral culpability is less than yours despite his criminality having greater breadth.
I have also found in his case genuine and deep remorse. I have also found occasion in his case to impose a merciful sentence for the reasons I will set out when I come to sentence him. I was particularly moved by his letter which he read and which was strongly supported by the testimonials tendered on his behalf.
I have applied the principle of parity in arriving at the sentence I will now impose.[12]
[12]Reasons (AMB) [59]–[63].
There was some overlap in offending between AMB and CT; however, AMB and JMB were not true co-offenders at all. They committed similar, near-identical offences within the one business and at about the same time. While each of JMB and AMB knew of the other’s offending, neither man participated in
the other’s offending.
Notwithstanding this, the concept of parity as between AMB and JMB was relevant in a broad sense,[13] as it was as between AMB and CT. Recently, in
Nipoe v The Queen,[14] this Court restated the principle of parity:[15][13]See Farrugia v The Queen (2011) 32 VR 140, 146–7 [26] (Redlich and Bongiorno JJA).
[14][2020] VSCA 137.
[15]Ibid [38]–[40] (Maxwell P, Niall and Emerton JJA), quoting Drake v Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634, 639 (Brennan J), Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ), Wong v The Queen (2001) 207 CLR 584, 608 (Gaudron, Gummow and Hayne JJ) (emphasis in original), and R v Djukic [2001] VSCA 226, [25] (Vincent JA) (citations omitted).
Consistency in the application of the law is a fundamental aspect of the rule of law. In a very different context, but in terms that are relevant to discretions generally, Brennan J said that: ‘[i]nconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with ordinary notions of justice’. The High Court has observed that:
Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of justice’.
Appealable error may be inferred from disparity that is not explained in the reasons for sentence, and the disparity itself may provide a basis for appellate intervention. However, any assessment of an argument based on disparity requires this Court to have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders and to recognise that:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant aspect.
The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the ‘qualitative and discretionary judgments required’ to arrive at the sentence imposed. It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA, with whom Brookings and Phillips JJA agreed, said in R v Djukic:
Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigating factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.
Further, in Chamma v The Queen,[16] on the issue of parity, this Court said:
Parity is an aspect of equal justice that requires like to be alike. What will constitute ‘like’ as between co-offenders will ultimately require an evaluation based on impression. What will constitute a departure from like and the extent of that departure will require a similarly impressionistic evaluation. Reasonable minds will inevitable differ on these sorts of evaluations. On appeal, disparity in treatment of co-offenders, or its unwarranted absence, is treated within the same analytical framework as manifest excess. An appellate court will rarely resentence based on disparity (or impugned parity) because sentencing, by nature, is imprecise and involves an exercise of judicial discretion. The disparity (or lack of it) must be so ‘marked’ or ‘manifest’ so as not to be reasonably open to the sentencing judge.[17]
[16][2020] VSCA 232.
[17]Ibid [60] (Priest, Beach and T Forrest JJA) (citations omitted).
In our view this ground is not arguable. The judge, despite the fact that JMB fell to be sentenced for more transactions involving a greater quantum of cash paid out, considered AMB’s criminality to be greater than JMB’s. The context in which the respective offending occurred was vastly different. The judge found, and was entitled to find, that AMB’s position in the company as managing director/ostensible owner was widely disparate to JMB’s role as a modestly paid employee. AMB was in a substantially superior position to shape the culture and practices of the company. JMB followed company practice; AMB created it and then, as we have explained, offended within that context. We agree with his Honour’s conclusion that JMB was less criminally culpable than AMB.
Further, we consider that AMB has not demonstrated that the disparity between his sentence and CT’s sentence was manifestly inadequate. CT, who was the most prolific offender, received a prison sentence 300 per cent greater than AMB’s, with a slightly lower community work component to his CCO. CT was certainly much higher in the organisational hierarchy than JMB, and close to AMB in seniority. He was not, however, the controller of the company, he did not establish its dishonest culture (although he was its enthusiastic disciple) and the factors in mitigation — particularly the established family hardship — were of a greater order than those available to either JMB or AMB. We consider that the disparity between AMB’s and CT’s sentences was an appropriate reflection of the various similar and dissimilar factors that were relevant to both offenders. Leave to appeal under ground 3 must be refused.
Ground 4
The learned sentencing judge erred in failing to give effect to the principle that, where a person is on the cusp of being sentenced to a term of imprisonment, the COVID-19 pandemic presents a powerful reason not to impose a sentence requiring that the person be incarcerated.
We agree with the respondent that this proposed ground argues for, in effect, an extension of the principle of parsimony. This principle requires that a sentence must be no more severe than is necessary to meet the purposes of sentencing.[18] There is no basis for such an extension of that principle. The judge appropriately synthesised all relevant sentencing considerations and arrived at a sentence which was necessary in order to give effect to the sentencing considerations.
[18]
It cannot be said that the judge overlooked the impact of COVID-19 or in some way undervalued it:
Plea of guilty
…
Your plea attracts a very significant utilitarian value. As I noted during the plea hearing, it is not an exaggeration to describe the circumstances surrounding trial listings in this State at present as a crisis.
A trial of you and your co-offenders may have taken up three months of court time. The trial was listed for July just gone, but of course it would not have been able to proceed and the date was vacated some time ago. It is likely a trial would not have been reached until late 2021 or early 2022. The many hundreds of trials that have not been reached during this pandemic and those that cannot be dealt with in the coming months of course stand a better chance of being reached in the next 18 months due to the resolution of
matters such as yours.
At the best of times your plea would have a significant utilitarian value. In the context of this pandemic it is far more pronounced.
Delay
Delay is a matter of great significance in your case, as it is for your co-offenders. The matter has hung over your head for a lengthy period. You have not re-offended, you have abided by strict bail conditions and travelled from Sydney to Melbourne for court commitments when required. You have also engage in charitable works and remained engaged in the community.
Your conduct during this period of delay, and the fact that you have experienced the delay knowing you would face the consequences of your offending eventually, attracts mitigation and I have taken this into account in determining the sentence I will impose.
COVID-19
You will enter custody at an extraordinary time in our history. The atmosphere in our community in this State is one of high anxiety and oppressive circumstances. Your experience in custody will be shaped by the atmosphere we are all experiencing. You will endure a 14-day quarantine. You will have no visits for the four-month duration I will impose. It is likely that you will not be able to see those dear to you other than on a screen, for the duration of your gaol term.
I have taken these matters into account. I have also taken into account the added burden of experiencing anxiety and concern for the welfare of yourself and others whilst you are incarcerated.[19]
[19]Reasons [45]–[51] (AMB).
COVID-19 and its effects took their place in the sentencing calculus along with all other relevant considerations. We reject the submission that it acquires some special place in the mix, only to be considered after a synthesis is reached on all other factors. Nor do we accept the proposition, advanced in written submissions by AMB, that, where a person is ‘on the cusp’ of a sentence of imprisonment, the COVID-19 pandemic is a ‘powerful reason’ not to impose such a sentence. Even if that submission were correct, we consider that the applicant has failed to establish the underpinning premise of this ground, namely, that AMB was merely ‘on the cusp’ of a term of imprisonment before COVID-19 considerations were given weight. Leave to appeal under ground 4 must be refused.
Ground 5
The sentence is manifestly excessive in light of the applicant’s early guilty plea, prior good character and increased burden of imprisonment, the three-year delay in the matter being finalised, and other factors in mitigation.
It is often observed that this is a difficult ground to establish.[20] To succeed, an applicant must demonstrate that the sentencing discretion has impliedly miscarried. The error, not capable of specific identification, must be inferred from a sentence that is so excessive as to be wholly outside the range of sentences available to the sentencing judge.[21] The error (whether leading to inadequacy or excess) must be visible in plain view as unreasonable or obviously unjust.[22]
[20]See, eg, R v Boaza [1999] VSCA 126, [42] (Winneke P) (‘Boaza’); DPP v Karazisis (2010) 31 VR 634, 662 [127] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).
[21]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA), quoted in Lim v The Queen [2019] VSCA 182, [60] (T Forrest JA and Croucher AJA); Begg v The Queen [2020] VSCA 183, [53] (Priest, Tate and T Forrest JJA) (‘Begg’); Boaza [1999] VSCA 126, [42]; Karazisis (2010) 31 VR 634, 662–3 [127].
[22]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); Begg [2020] VSCA 183, [53].
For the reasons we have expressed in considering grounds 1 to 4, in our view the sentence imposed on AMB was well within the range of sentences reasonably open. To recapitulate, we consider that AMB’s offending (as set out in paragraph [6] of these reasons) and its context called for a term of imprisonment. As the judge correctly noted, in cases such as this, in which the offending is difficult to detect, the principle of general deterrence must be given particular emphasis. We consider the term imposed, together with the CCO, to be a relatively modest punishment for highly calculated, organised criminal conduct. That modesty is explained by the impressive range of mitigating factors which, undoubtedly, have served to moderate the penalty that otherwise would have been imposed. The proposed ground is not reasonably arguable and leave to appeal will be refused.
Consideration — CT
Ground 1
The sentence imposed upon the applicant is manifestly excessive in respect of the sentence of 12 months’ imprisonment in all the circumstances of the offence and of the applicant.
Particulars
It is implicit that the learned sentencing judge failed to give sufficient weight to:
(a)the early plea of guilty;
(b)remorse and contrition;
(c)prior good character;
(d)good prospects of rehabilitation;
(e)extra-curial punishment;
(f)delay;
(g)significant family hardship making the applicant’s experience of custody far more burdensome; and
(h)COVID-19 factors.
We have observed at paragraph [39] of these reasons that grounds such as manifest excess that allege implicit error are difficult to establish.
There were many factors that counted in CT’s favour in the sentencing considerations, including all those particularised under this ground. The judge was clearly conscious of all of them. So much is apparent from the judge’s reasons for sentence:
Extra-curial punishment
Your counsel addressed me on the financial ramifications for you and your family that resulted from your offending. In dollar terms, it has been very significant. The letter I received from your wife contains considerable detail as to the financial loss that can be attributed to your commission of the offence and its consequences. These matters were supported by documents tendered.
The Prosecution point out that these financial losses are largely the natural consequences that flow from a person engaged in your occupation, with your financial resources and interests, offending in the dishonest manner in which you did in the course of your business. I consider that to be a fair assessment. A fair-minded member of the community may even consider these losses to be ‘just desserts’ for your offending. The point remains, however, that I accept that the losses are consequences of your conduct, I accept that they are significant, particularly the loss of the deposit, and I accept that they have impacted significantly on you and will do into the future. Viewed reasonably, the impact has a punitive effect. I expect it will also serve as specific deterrence in your case.
I have mitigated the sentence I impose to some degree due to what I am satisfied amounts to extra-curial punishment. This mitigation includes my assessment of the impact upon you from the public shaming and opprobrium flowing from the wide reporting of the initial allegations, which of course fell away substantially once you pleaded to the indictment before me.
Plea of guilty
I am satisfied that your plea of guilty should be regarded as an early one. You indicated an intention to plead guilty to an appropriate charge as far back as the committal hearing. You entered a plea to a more expansive charge in February of this year. The precise charge before me replaced that earlier indictment in June.
Your plea of guilty also attracts a significant discount for its utilitarian value. As I noted during the plea hearing, it is not an exaggeration to describe the circumstances surrounding trial listings in this State at present as a crisis.
A trial of you and your co-offenders may have taken up to three months of court time. The trial was listed for July just gone, but of course it would not have been able to proceed, and the date was vacated some time ago. It is likely a trial would not have been reached until late 2021 or early 2022. The many hundreds of trials that have not been reached during this pandemic and those that cannot be dealt with in the coming months of course stand a better chance of being reached in the next 18 months due to the resolution of matters such as yours.
I also accept that your plea is reflective of contrition and your acceptance at an early stage that you had engaged in the serious criminality before me. To some degree, it is reflective of remorse. Your plea is consistent with your previous good character, and what I find is some remorse as described in the reference material tendered on your behalf. Together with these findings, the matters contained in the psychological report of Michael Bilyk, and your work history, skills and standing in your industry, I find that you have good prospects of rehabilitation.
Delay
Your indication of a plea at an early stage and the efforts made on your behalf to resolve the matter are relevant to my assessment of the effects of delay. The matter has hung over your head for a lengthy period. You have not re-offended, you have worked to establish other businesses and have continued to support your family and play your role in assisting them through the difficulties they face. You have also remained engaged in your community and been a contributor to your community throughout this period.
Your conduct during this period of delay, and the fact that you have experienced the delay knowing you would face the consequences of your offending eventually, attracts mitigation and I have taken this into account in determining the sentence I will impose.
COVID-19
You entered custody at an extraordinary time in our history. The atmosphere in our community at the time of your incarceration was one of high anxiety and oppressive circumstances. Your experience in custody will be shaped by the atmosphere we are all experiencing. You have been through a 14-day quarantine in custody. You have had no visits. It is likely that you will not be able to see your wife and children or other family members, other than perhaps on a screen, for the duration of your gaol term.
In addition, I have taken into account that the anxiety experienced in the general community in relation to infection can be amplified for those within the confines of a prison system. Your concern for the welfare of your family during the pandemic will be harder to bear whilst you are incarcerated.
Prospects of rehabilitation, previous good character
I received a number of testimonials attesting to your previous good character, your remorse and your contributions to family life and the community.
I accept these matters generally, although I must view the assessments as to character in light of your offending and, in particular, in light of the recorded conversations referred to in the Prosecution opening that demonstrate your enthusiasm for the receipt of stolen goods and a high level of dishonesty. That said, I sentence you as someone who is otherwise of good character.
Given all the matters I have referred to, and given the shame, humiliation and extra-curial punishment in the form of monetary loss you have I experienced I consider your previous good character, work history, background and employment history justify a finding of good prospects of rehabilitation.
You are a first-time offender and, significantly, it is your first experience of custody. I have already referred to the matters which will increase the burden of imprisonment for you. I will impose a sentence that reflects the leniency and mercy that I consider is available to you, given the circumstances attracting personal mitigation in your case, that I have already referred to.[23]
[23]DPP v Tenenboim [2018] VCC 1277, [37]–[49] (Judge Johns).
In addition to these factors, his Honour also took account of the circumstances of family hardship that we have set out at paragraph [19] of these reasons. In our view his Honour correctly concluded that the combination of these circumstances of undoubted hardship failed to meet the ‘exceptional circumstances’ test[24] necessary for them to be characterised as a powerful standalone sentencing consideration. Further, we consider that the judge correctly took account of this family hardship as adding to the burdensome nature of CT’s incarceration.
[24]See, eg, Trinh v The Queen [2016] VSCA 307, [129]–[132] (Ashley JA).
All these findings, made by the judge in a careful and conscientious examination of the evidence and material tendered before his Honour, counted in CT’s favour. They told, however, only part of the story. This was serious and protracted offending. As we have noted, the judge was entitled to conclude that general deterrence remained a very significant factor. He observed that receiving stolen goods is a crime that encourages theft, it is an offence that is difficult to detect and that CT circumvented his obligations under the Second-Hand Dealers Act. Something was made, during the hearing of this application for leave to appeal, of the fact that these obligations were those of the company, but nothing turns on this. CT — aware that the goods were stolen and aware of the company’s statutory obligations — actively took steps as a highly-paid employee of the company to circumvent compliance with the Act.
We should add that, although the ground was drafted as attacking only the imprisonment component of the sentence, it was argued in Mr Grace’s oral submissions, in line with Greatorex v The Queen,[25] that the overall composite sentence was excessive. If that argument were accepted and the sentencing discretion reopened, then, it was contended, a CCO was an appropriate disposition.
[25]Greatorex [2016] VSCA 136.
In our view the composite sentence imposed, despite the powerful mitigatory factors, was quite modest in all the circumstances, and certainly well within the range of sentences reasonably open. Leave to appeal under this ground must be refused.
Ground 2
The learned sentencing judge erred in finding that the applicant had circumvented his obligations under the Second-Hand Dealers and Pawnbrokers Act 1989.[26]
[26]Emphasis added.
We have referred to CT’s complaint under this ground at paragraph [44] of these reasons. Whilst it is correct that the applicant personally had no obligations under the relevant Act, the company that employed him and paid him $200,000 per annum did. In circumstances where CT’s counsel conceded on the plea hearing that CT was an employee, that he well knew the obligations imposed on the company by the relevant Act and regulations and that, by his conduct, he bypassed those regulations, the error alleged by CT is illusory. This ground must be rejected and leave to appeal under it must be refused.
Ground 3
The learned sentencing judge erred in imposing a sentence of 12 months’ imprisonment that was manifestly disparate to the sentences imposed upon the applicant’s co-accused, thereby giving rise to a justifiable sense of grievance and a miscarriage of justice.
We have set out the principles relevant to appeals alleging a breach of the principle of parity at paragraphs [32]–[33] of these reasons. It will be recalled that AMB contended that his sentence was manifestly too close to CT’s sentence. CT contends (in part) that his sentence is manifestly too far from AMB’s sentence. Both CT and AMB contend that their respective sentences are manifestly too far from JMB’s sentence.
This ground can be dealt with shortly. There is no sensible comparison to be made between JMB and CT. JMB was very much the passive minor player in the dishonest conduct. JMB carried out nine transactions involving $45,210 in cash payments. CT carried out 42 transactions involving over $144,000 in cash payments. JMB offended over 12 days, CT over five weeks. CT was earning a vastly greater salary than that of JMB. The judge (despite CT’s powerful mitigatory circumstances) was correct to impose significantly disparate sentences on the two offenders. Similarly, for reasons we have stated when considering AMB’s parity argument, we have concluded that the judge appropriately distinguished between CT and AMB.[27]
[27]See above [34]–[35].
Whilst parity arguments can never be reduced to pure mathematics, and many intangible incommensurate considerations are also relevant, the argument remains a comparative one, and an arithmetic comparison of commensurable factors can sometimes be conducted. In this case, CT conducted more transactions than AMB by a factor of greater than 10, and handed over more cash than AMB by a factor of nearly five. Despite not being the founder of the company or responsible for its dishonest culture, CT embraced this organised criminal activity and participated in it with enthusiasm. We have reviewed the powerful mitigatory factors under CT’s ground 2. They were, if anything, more substantial than those of both JMB and AMB — but his conduct was significantly more criminally culpable. In our view CT has failed to demonstrate that this ground is reasonably arguable and leave to appeal must be refused.
Conclusion
AMB’s application for leave to appeal must be refused.
CT’s application for leave to appeal must be refused.
Sentencing Act 1991 ss 5(1), (3). See also Borg v The Queen [2020] VSCA 191, [42] (Priest, Beach and Niall JJA); Greatorex v The Queen [2016] VSCA 136, [23] (Redlich, Santamaria and
Beach JJA) (‘Greatorex’); McGrath v The Queen [2015] VSCA 176, [31] (Maxwell P, Redlich and Kyrou JJA); Boulton v The Queen (2014) 46 VR 308, [140] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
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