Benkic v The Queen
[2019] VSCA 34
•28 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0020
| CORI BENKIC | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 February 2019 |
| DATE OF JUDGMENT: | 28 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 34 |
| SENTENCE APPEALED FROM: | DPP v Benkic (Unreported, County Court of Victoria, Judge Carmody, 10 December 2018) |
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CRIMINAL LAW — Sentence — Appeal — Burglary, theft of firearms and other offences — Whether the judge erred in categorising the offending — Whether a sentence of 18 months’ imprisonment with a 2 year CCO manifestly excessive — Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Hannan | James Dowsley & Associates |
| For the Respondent | Ms G A Coghlan | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
The application in this Court
Cori Benkic, now aged 24 years,[1] seeks leave to appeal against a sentence of one year and nine months’ imprisonment, to be followed upon release by a community correction order (‘CCO’) of two years’ duration (with supervision and treatment conditions), imposed upon him by a judge of the County Court on 10 December 2018, following his pleas of guilty to burglary[2] (charge 1) and theft of a firearm[3] (charge 2), and to the related summary offences of dealing in property suspected of being the proceeds of crime[4] (charge 19) and failing to stop on direction[5] (charge 23).
[1]His date of birth is 31 March 1994.
[2]Crimes Act 1958, s 76(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 74AA(1). The maximum penalty is 1800 penalty units or 15 years’ imprisonment.
[4]Crimes Act 1958, s 195. The maximum penalty is 2 years’ imprisonment.
[5]Road Safety Act 1986, s 64A. The maximum penalty is 60 penalty units or 6 months’ imprisonment (or both).
The sentencing orders made by the judge are reflected in the following table:
Charge Offence Sentence Cumulation Indictable Offences 1 Burglary 2 year CCO, with supervision and treatment conditions — 2 Theft of firearm 18 months’ imprisonment Base Summary offences 19 Deal in property suspected of being proceeds of crime 6 months’ imprisonment 2 months 23 Failing to stop on direction 3 months’ imprisonment 1 month Total effective sentence 1 year and 9 months’ imprisonment, followed by 2 year CCO, with supervision and treatment conditions Non-parole period Nil Presentence detention 539 days Other orders License cancelled and disqualified for 6 months; forensic sample order Section 6AAA statement 3 years and 6 months’ imprisonment, with a non-parole period of 2 years and 3 months
The applicant relies on two grounds as follows:
1. The learned sentencing judge erred by categorising charges 1 and 2 as not at the lower end of this type of offending.
Particulars:
(a)The learned sentencing erred by categorising the victims as ‘soft targets’.
2. The individual sentences, orders for cumulation, total effective sentence and imposition of a Community Correction Order are each manifestly excessive.
Particulars:
(b)The learned sentencing judge gave insufficient weight to delay experienced by the applicant whilst awaiting sentence.
(c)The learned sentencing judge gave insufficient weight to the youth and limited prior history of the applicant.
(d)The learned sentencing judge gave insufficient weight to the applicant’s prospects of rehabilitation.
(e)The learned sentencing judge gave too much weight to the objective seriousness of the offending.
(f)The learned sentencing judge failed to have proper regard to the maximum penalties of summary charges 19 and 23.
For the reasons that follow, leave to appeal should be refused.
The applicant’s offending
At the time of the relevant offending, the applicant was aged 23 and was unemployed. His two co-offenders, Kane Fulham[6] and Brenna Perry,[7] were aged 29 and 23 respectively.
[6]On 10 December 2018, Fulham received a total effective sentence of four years and six months’ imprisonment for burglary, theft of a firearm and other indictable offences, including criminal damage, reckless endangerment, handling stolen goods, dangerous driving while pursued by police, being a prohibited person in possession of a firearm; and for summary offences including failing to stop a vehicle on police direction, driving whilst disqualified and dealing with property suspected of being the proceeds of crime.
[7]Brenna Perry, pleaded guilty on 28 August 2018 to one charge of handling stolen goods, for which she received an adjourned undertaking with conviction.
During the night between 1 and 2 June 2017, a 2008 Toyota Landcruiser was stolen from Middle Tarwin. The vehicle was recovered by police in Lang Lang on 9 June 2017. It bore stolen number plates from two different vehicles. Subsequent forensic investigation located the applicant’s fingerprints inside the vehicle (Related Summary Charge 19 — Dealing in property suspected of being the proceeds of crime).
Between 17 and 19 June 2017, the applicant and co-offenders drove to an isolated farm property in Ouyen. They entered a large shed on the property where the owner stored firearms and ammunition (Charge 1 — Burglary). Using chains attached to their vehicle, they removed gun safes from the wall, opened them and stole six firearms and a large quantity of ammunition (Charge 2 — Theft of firearm). The firearms were registered to their lawful owner, who was unknown to them.
At 6.36 pm on 19 June 2017, the applicant and co-offenders were travelling south on the Calder Highway in a Nissan utility which had been stolen from New South Wales. The Police Airwing had the vehicle under aerial surveillance. Police attempted to intercept the vehicle north of Kyneton. The applicant was driving, and Fulham and Perry were passengers. Police activated their emergency lights and sirens in an attempt to pull over the vehicle, prompting the applicant to stop the vehicle in the emergency lane. Before police could approach the vehicle, however, the applicant took off at speed. He drove the vehicle diagonally across two lanes of traffic before crossing over the median strip and onto the other side of the highway. The applicant then drove against traffic along the northbound lanes of the highway for about 100 metres. He then performed a ‘U-turn’ and continued travelling north along the Calder Highway. Police did not attempt to pursue the vehicle across the median strip (Related Summary Charge 23 — Fail to stop on direction).
Shortly afterward, the applicant swapped places with Fulham, who then drove the vehicle. The vehicle left the highway at Elphinstone, travelling on back roads towards Macedon, and then drove through the townships of Kyneton and Woodend until, at about 7.24 pm, the vehicle struck a tyre deflation device set up by police on Black Forest Drive in Macedon, causing the passenger side front and rear tyres to deflate. Fulham then drove the damaged vehicle onto the Calder Highway, heading south, followed by police vehicles. The vehicle again crossed the median strip onto the northbound lanes, travelling in the opposite direction to traffic flow before performing a U-turn. It was then driven back across the median strip into the southbound lanes, travelling contrary to the traffic flow, before exiting back onto Black Forest Drive towards Macedon. By this point, the vehicle had lost both front and rear passenger tyres and was being driven on its wheel rims. The vehicle was then driven on a number of dirt roads within the Macedon Pine Forest. At about 7.30 pm, the applicant and co-offenders abandoned the vehicle and fled on foot into the pine forest. Police officers and ‘K9’ units searched for them in the forest, locating the applicant at about 8.27 pm. A search of the stolen vehicle located four of the stolen firearms and ammunition.
The plea
On the plea hearing conducted on 5 December 2018, counsel relied on the following factors in mitigation:
· the applicant’s relative youth;
· his limited criminal history;
· that it was his first time in custody;
· his early pleas of guilty;
· delay in the charges being finalised, not attributable to the applicant;
· the offending was low-level;
· the applicant had been ‘led astray’ by Fulham;
· the applicant’s remorse;
· his good work history;
· ongoing support from his mother;
· he had made good use of his time in custody; and
· his reasonable prospects of rehabilitation.
Reasons for sentence
In his sentencing remarks, the judge accepted that the applicant’s plea — which was entered at committal mention on 8 March 2018 — was entered at the ‘earliest stage’, had utilitarian value and ‘indicates and demonstrates remorse’. His Honour described the delay in the final resolution of the applicant’s case as ‘unacceptable’.[8]
[8]The judge said:
Your plea of guilty to these charges was resolved on 8 March 2018, at the committal mention stage. Somehow due to an administrative error at the Magistrates’ Court you were permitted to stand trial. This has caused a delay in the final resolution of your charges which is no fault of yours and now there has been what I would describe as an unacceptable delay. The effect of the delay is that you have been in remand awaiting resolution of your case, this is your first time in custody and the extended period of uncertainty for your future whilst on remand must be taken into account in your final sentence for this offending.
The sentencing judge observed that since the applicant was ‘a relatively young offender’ the three propositions from Mills[9] were applicable; and he assessed the applicant’s prospects of rehabilitation as ‘good’, so long as he was able to control his addiction to ‘ice’. His Honour also observed that the applicant had a ‘limited criminal history’,[10] and that he was ‘drawn to this offending’ by Fulham (whose criminal history and ‘overall involvement in the offending’ were more serious).
[9]R v Mills [1998] 4 VR 235, 241.
[10]The applicant was sentenced in the Children’s Court in July 2009 for indecent assault, burglary and theft, and in April 2010 for theft and failing to answer bail. He also was dealt with in the Magistrates’ Court in February 2015 for unlawful assault and criminal damage. None of the sentences were custodial, all being imposed without conviction.
Significantly, the judge rejected the submission put on the plea that ‘this offending falls at the lower end for offences of this kind’. His Honour said:
I do not accept your counsel's submission that the offences of burglary and theft of firearms charges are at the lower end of this type of offending. Theft of guns from farms has become a more prevalent offence, and whilst the firearms are secured in gun safes, their isolated location means that such offending is offending on a soft target. In this case only four of the six guns have been recovered by police. I find these offences had premeditation and planning in relation to them.
Ultimately, the judge said that he would impose a CCO on the burglary charge (charge 1) to ‘reinforce’ the applicant’s prospects of rehabilitation. His Honour said that he declined to fix a non-parole period on the sentence of 21 months’ imprisonment imposed on the other charges because, first, the applicant having already spent 539 days on remand, he had ‘served most of the time to start with’; and, secondly, he wanted to ensure that the applicant ‘serve the full 21 months and then [be] released to a CCO’, so that ‘the punishment is followed by the rehabilitation immediately rather than having a complex system where the Parole Board may or may not be involved’ when the judge wanted the applicant to be on a CCO.
First ground — Categorisation of seriousness of offending
In support of the first ground of appeal, whilst counsel accepted that ‘the offending demonstrates some degree of planning and premeditation’, he submitted that the judge erred in failing to find that the burglary and theft of firearms ‘fell at the lower end for offences of this kind’. Counsel submitted in the written case that neither the issue of prevalence, nor the fact that two firearms were not recovered, were raised by the judge in the course of the plea. Further, counsel criticised the judge’s description of the offending being on a ‘soft target’, and submitted that so much constituted specific error which vitiated the exercise of the sentencing discretion.
We reject these submissions.
The applicant’s offending was not spontaneous or opportunistic. Rather, as was conceded by his counsel, the burglary and theft were planned and premeditated, and involved the applicant and others going to a farm, entering a shed, using chains attached to a vehicle to dislodge a gun safe and the theft of six firearms (and ammunition). Given these features, we consider that it would be wrong to classify the applicant’s as low-level offending.
Furthermore, it is clear that the legislature regards the theft of firearms as a particularly serious species of theft. Section 74AA of the Crimes Act 1958, which created the offence of theft of a firearm, was inserted by s 9 of the Firearms Amendment (Trafficking and Other Measures) Act 2015. It prescribes a maximum penalty of 15 years’ imprisonment — as opposed to the maximum sentence of 10 years’ imprisonment for theft simpliciter[11] — so much reflecting Parliament’s view of the seriousness with which the theft of firearms is to be viewed. As the Minister for Police explained in the Second Reading of the relevant Bill:[12]
Finally, the bill will introduce a new theft of a firearm offence into the Crimes Act 1958. The new offence will carry a higher penalty than the offence of theft under section 74 of the Crimes Act, in recognition that the theft of firearms can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity.
[11]See Crimes Act 1958, s 74(1).
[12]Hansard, Legislative Assembly, 19 August 2015, 2759.
Moreover, there is nothing in the contentions that the judge did not raise prevalence, or that only four guns were recovered, with counsel for the applicant on the plea. Fulham’s plea was conducted at the same time as the applicant’s, and both of these matters were raised by the judge with Fulham’s counsel. Counsel for the applicant would have heard what the judge said and Fulham’s counsel’s response. He would also have been well aware that the prosecution opening made clear that two firearms were not recovered. Given those circumstances, counsel for the applicant would have been astute to note the judge’s concerns, and to assuage them if he was capable of doing so.
Finally, we consider that it was entirely apt to describe the offending as having been perpetrated on a ‘soft target’. What the judge plainly had in mind is that, by virtue of their isolation, farm properties are easy and vulnerable targets. So much cannot be gainsaid.
None of the complaints made under the umbrella of the first ground has substance.
Second ground — Manifest excess
In Leimonitis[13] it was observed:
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[14] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[15] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[16] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[17]
[13]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) (citations as in original).
[14]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[15]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[16]Ibid.
[17] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
Balancing the applicant’s relative youth, limited criminal history and prospects of rehabilitation, together with the delay in finalising his case, against the objective seriousness of the offending, we are not persuaded that the individual sentences imposed (including the CCO), orders for cumulation or the total effective sentence are wholly outside the range of those open in the sound exercise of the sentencing discretion.
In our view, it was well within the proper bounds of discretion for the judge to impose a CCO of two years’ duration — aimed at promoting the applicant’s rehabilitation — for the burglary, and a sentence of 18 months’ imprisonment for the theft of the firearms. We also consider that, although perhaps stern, the sentence of six months’ imprisonment for dealing with property suspected of being the proceeds of crime was properly open to the judge. Finally, we regard charge 23, failing to stop on the direction of police, as being a very serious example of the offence, wholly justifying the sentence imposed.
Ground 2 cannot be upheld.
Conclusion
In light of the foregoing, leave to appeal against sentence must be refused.
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