Bruno Strangio v The Queen
[2016] VSCA 286
•23 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0197
| BRUNO STRANGIO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 November 2016 |
| DATE OF JUDGMENT: | 23 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 286 |
| JUDGMENT APPEALED FROM: | R v Strangio (Unreported, County Court of Victoria, Judge Chettle, 24 August 2016) |
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CRIMINAL LAW – Appeal – Sentence – Judicial monitoring report obtained following plea hearing – Report provided to parties but not referred to by judge – Error in failing to do so – Appeal allowed – Matter remitted to County Court for resentence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC | Armour Legal |
| For the Respondent | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
Two indictments were filed against the applicant in the County Court. The first indictment[1] charged him with obtaining, and attempting to obtain, property by deception; and the second[2] charged him with attempting to pervert the course of justice.
[1]No A12504795.6.
[2]No G10117028.
Following a trial on the first indictment, on 3 August 2016 a jury found the applicant guilty of eight charges of obtaining property by deception[3] (charges 1 to 4, and 6 to 9), and one charge of attempting to obtain property by deception[4] (charge 5). A little over a week later, on 11 August 2016 — which was the first day that the trial on the second indictment was listed to commence — the applicant pleaded guilty to a charge of attempting to pervert the course of justice.[5]
[3]Crimes Act 1958, s 81. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 321M and s 81. The maximum penalty is five years’ imprisonment.
[5]Attempting to pervert the course of justice is a common law offence. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
On 24 August 2016, the applicant was sentenced to an aggregate sentence of nine months’ imprisonment on the nine deception charges, and for six months on the charge of attempting to pervert the course of justice. Three months of the sentence on the second indictment was ordered to be served cumulatively with the aggregate sentence on the first. The total effective sentence was thus 12 months’ imprisonment, upon which the judge fixed a non-parole period of six months’ imprisonment.
The applicant sought leave to appeal against the sentence on a ground which asserts that the sentencing discretion miscarried in that the judge ‘failed to have regard to a second Judicial Monitoring Report’.
For the reasons that follow, I would grant leave to appeal and allow the appeal. In the unusual circumstances of this case, I would remit the matter to the County Court for further hearing.
The applicant’s offending
The applicant’s offending may be briefly summarised.
The deception charges
On 11 August 2006, the applicant registered a company named ‘Midland Plant Hire Pty Ltd’ with the Australian Securities and Investments Commission, the registered address of the company being 105 Ordish Road, South Dandenong. Notwithstanding that its registered address was 105 Ordish Road, South Dandenong, however, Midland Plant Hire Pty Ltd operated its business out of premises in Barkley Avenue, Armadale. Although there were two directors, the applicant effectively ran and operated the relevant business. Subsequently, on 17 January 2010, the company was deregistered.
The applicant was a signatory to some 35 bank accounts. On 14 December 2006, he established an ANZ Bank company account with a cheque book facility in the name of Midland Plant Hire, of 105 Ordish Road, South Dandenong. He was the sole signatory to that business account, which, on 2 February 2009, was closed by the ANZ Bank for being overdrawn.
Despite the account having been closed, however, between 25 February 2009 and 20 March 2009, the applicant issued nine cheques from it, to the total sum of approximately $40,000.
On the plea hearing, the prosecutor described the offending as follows:[6]
The [applicant] gave these cheques to his employees and contractors, Anthony Giampaolo, John Crisara and Annick Michel. John Crisara and Annick Michel were employees at Midland Plant Hire who were owed money for work performed for the [applicant]. Anthony Giampaolo was a contractor who did work for Midland Plant Hire. His business was also owed money from Midland Plant Hire. The [applicant] instructed them to fill out the amounts in the cheques [and] take them to various money-lending stores throughout Melbourne rather than a bank. The [applicant] instructed that they were to say that a person named ‘Kevin Brent’ — and, in one case, ‘Colin’ or something similar — had authorised the cashing of these cheques.
When the money-lending companies and the tellers contacted Midland Plant Hire by phone or fax, the [applicant] would answer the queries, claiming that he was Kevin Brent or in one case Colin. The [applicant] would claim that there was [sic.] sufficient funds in the account and that he was the person authorised by Midland Plant Hire to deal with the accounts and banking enquiries.
The money-lending stores on all but one cheque paid cash on the cheques to Anthony Giampaolo, John Crisara and Annick Michel in various amounts. John Crisara, Annick Michel and Anthony Giampaolo all made statements to the investigating police which implicated the [applicant] in the [eight] offences of obtaining property by deception … and one attempt to obtain property by deception. The [applicant] was found guilty by a jury on all [charges of attempting to obtain property by deception] on 3 August 2016.
[6]Some additional punctuation has been added to the original transcript.
The attempt to pervert the course of justice
Further, the prosecutor opened the facts founding the attempt to pervert the course of justice as follows:
In relation to the second indictment, the one charge of attempt to pervert the course of justice, prior to the trial, [on 21 March 2014] the [applicant] attended at the Queen Victoria Market and approached stall 114–116 in Shed B. This was a fruit and vegetable store at which the witness John Crisara worked together with his brother Anthony Crisara. Anthony Crisara, who had some knowledge of his brother’s involvement in the proceedings against the [applicant], told John Crisara that [the applicant] was approaching. John Crisara hid behind some crates as he did not want to talk to the [applicant].
The [applicant] called Anthony Crisara over to speak with him. The two men came together near the entrance to Shed C. The [applicant] said to Anthony Crisara: ‘I want you to help me. Talk to your brother, get him to change his story at court. Your contacts helped John off the hook, so I want you to help me’. Anthony responded: ‘I don’t know what you’re talking about. I’m busy, please go’. The [applicant] kept saying to Anthony Crisara: ‘Please help me, I'm going to gaol’. Crisara said: ‘I don’t know the contents of all this at all so I don’t want to get involved. I’m busy, I’ve got to go’.
While this conversation was taking place John Crisara took some photos of the two men. This conversation lasted about ten minutes according to Anthony Crisara, and after the [applicant] left, Anthony Crisara told his brother John what had been said by the [applicant] ...
A previous sentence
As I have mentioned, the ground of appeal claims that the judge ‘failed to have regard to a second Judicial Monitoring Report’. The report referred to relates to a community correction order (‘CCO’) that the applicant was undergoing at the time he was sentenced for the present offences, imposed in the following circumstances.
On 13 October 2015, Hollingworth J sentenced the applicant for perjury to a CCO of 18 months’ duration.[7] The perjury charge arose out of a dispute in relation to a restaurant lease in Chadstone shopping centre. In March 2010, during a court proceeding in the Supreme Court relating to that dispute, the applicant knowingly gave false evidence, stating that he had never been declared bankrupt. In fact, he had been an undischarged bankrupt since July 2008.[8]
[7]R v Strangio [2015] VSC 566.
[8]Ibid [2].
The applicant had eventually pleaded guilty to the charge of perjury, after the case had followed a somewhat tortured path (which I need not recount).[9]
[9]See ibid [22]–[26].
Hollingworth J imposed conditions with the CCO. Her Honour pronounced the sentence as follows:[10]
[10]Ibid [54]–[55].
Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of perjury I sentence you to undertake a community correction order for a period of 18 months from today’s date.
In addition to the usual conditions of such an order under s 45(1) of the Sentencing Act, the following additional conditions apply. I will now read out to you from the second part of the order that you have signed:
(a) You must perform 300 hours of unpaid community work.
(b) You must undergo mental health assessment and treatment, as directed.
(c) You must engage in any program that addresses factors related to your offending behaviour, as directed.
(d) You must submit to supervision, monitoring and management, as directed by the Secretary.
(e) You must reappear before the court for review of the compliance of this order on 12 April 2016 and 12 October 2016.
(f) Corrections Victoria must provide to the court a report as to your progress and compliance with the community correction order, no later than one month before each of the dates on which you are to reappear before the court.
Reports provided to the sentencing judge
A judicial monitoring report on the applicant’s compliance with the CCO imposed by Hollingworth J, dated 3 March 2016, was provided to the sentencing judge during the plea hearing on 16 August 2016. It was not a source of much optimism. Among other things, it was reported:
Throughout appointments Mr Strangio has presented as avoidant in discussions regarding his offending behaviour and attempts to take control of the topic of conversation. Mr Strangio also engaged in negative discussions regarding his court experience and has made inappropriate remarks about Justice Hollingworth. Mr Strangio has presented as difficult, argumentative, rude and slightly aggressive at times. He often speaks over the case manager and will make simple conversations very difficult.
…
On 06.01.2016 Mr Strangio was seen by the Officer in Charge and the case manager to discuss issues pertaining to him failing to provide appropriate medical documentation to enable him to be contracted for community work. This documentation had been requested on a number of occasions however Mr Strangio continuously failed to provide the required documentation. Throughout this appointment Mr Strangio spoke over the Officer in Charge and was very argumentative, he spoke about perjury and the inadequacies of the justice system. In relation to the community work he [made an insulting remark] referring to Justice Hollingworth. Following this Mr Strangio was very agitated and was ask [sic.] to wait in reception to be issued with a lawful direction … The Officer in Charge attempted to issue the lawful direction however Mr Strangio refused to sign it, continued to argue and would not take the document. Subsequently Mr Strangio was issued with a non-compliance [sic.] for his inappropriate behaviour during this appointment.
Mr Strangio’s interactions and attitude with the case manager have improved recently, he has been engaging with his order conditions, and his attendance has been satisfactory.
…
From the outset of this order Mr Strangio has demonstrated resistance and problematic behaviour towards his order requirements. Initially, Mr Strangio refused to have his photograph taken, has only signed paperwork ‘on protest’, has been argumentative, agitated and has received a non-compliance [sic.] for inappropriate behaviour in an appointment. Mr Strangio has challenged the legal system and its values, has been distrusting towards this service and has made inappropriate remarks in relation to Justice Hollingworth. Further to this, the community work condition was significantly delayed in its commencement due to Mr Strangio continuously failing to provide this service with appropriate documentation for this condition to be able to commence.[[11]]
At the time of this report, all conditions of Mr Strangio’s order have now been implemented. …
[11]At the time of the report, the applicant had completed only 13 of the 300 hours of community work imposed.
Upon reading the judicial monitoring report, Exhibit 1, the judge remarked — with some justification — that the applicant’s performance under the CCO did not ‘bode well for his prospects’.
Notwithstanding the contents of the report, however, the applicant’s counsel submitted that the applicant had been performing well on the CCO in the period following the report’s preparation. Counsel stated that the applicant had performed 80 hours of community work,[12] prompting his Honour to say that, ‘that may be right, let’s get a report, and I want to know specifically what will happen to that order if he is incarcerated’. Having thus indicated that he would obtain a further report, the judge reflected on the appropriate sentencing options. He remarked:[13]
Thinking about this, as I unfortunately have been for some time, it strikes me that the options include a period, relatively short, of incarceration together with a community corrections order. A totally suspended, or partially suspended sentence or something like a sentence with a non-parole period, but again, not an exceptional sentence.
I mean, there has to be some cumulation for the attempt to pervert. I mean, so they’re the range of things I’m looking at and my current thinking on it. … I want to get all the help I can in relation to Mr Strangio.
[12]In fact, the applicant had completed 65½ hours.
[13]Emphasis added.
Later, in the course of the plea, there was the following exchange:
HIS HONOUR: You understand the parameters of what I’m thinking? There’s the three choices. I can either give him a sentence, a suspended sentence, a partially suspended sentence, or a combination with a CCO. I can’t give a suspended and a CCO, but — maybe I can.
[DEFENCE COUNSEL]: I’m not sure about that, Your Honour.
HIS HONOUR: Anyway, I don’t think I want to. That’s not within my scope. I mean, what I’m looking at here is a short, sharp period of imprisonment for the totality, and the balance of it either by a CCO or perhaps suspended.
[DEFENCE COUNSEL]: Yes, Your Honour.
HIS HONOUR: If he’s doing a CCO successfully for the Supreme Court, I’m more inclined to think that maybe the sentencing best served by suspending, but I’ll think about all that.
In the result, an updated judicial monitoring report, dated 18 August 2016, signed by both a Community Corrections Officer and Officer in Charge of the Rosebud Community Correctional Services (‘the updated report’), was provided to the parties before sentence. By the time of the updated report — which did not become an exhibit — the applicant had completed 65 and a half hours of the 300 hours of community work required. Under ‘Conclusion’, it was reported:
Mr Strangio was excused from his Community Corrections [sic.] order commitments whilst in preparation for his upcoming Court Matters. Due to the above information this service has had very little involvement with Mr Strangio as he has attended this service on one occasion post the last Judicial Monitoring Court Date. During this appointment Mr Strangio engaged appropriately with this service.
An up to date medical is required every three months to remain on light duties community work team. As Mr Strangio has been problematic in the past providing required medical documentation, and due to the small time frame available to complete community work hours it was agreed that following the outcome of the pending court matters the required medical documentation would be supplied. Mr Strangio attended all scheduled community work days before being remanded without issue.
As Mr Strangio has been placed into custody at the Melbourne Assessment Prison on 03.08.2016 this service has had no further communication and his Community Corrections [sic.] Order conditions have been placed on hold until further notice.
When the matter resumed before the sentencing judge on 24 August 2016, the latest report was not discussed with the parties before sentence, and, as I have mentioned, it was not tendered as an exhibit on the plea. Moreover, there was no reference to the report in the judge’s reasons for sentence. Importantly, in his sentencing remarks, the judge expressed the view that he could not achieve ‘the purposes of the sentencing [sic.] by imposing a community corrections [sic.] order’.
The submissions in this Court
In the written case, counsel for the applicant submitted that the updated report ‘painted a far more positive picture’ of the applicant. From an objective standpoint, it demonstrated that the applicant’s performance on the CCO had improved, and that he had ‘engaged well’ in treatment and rehabilitation, as well as community work. The updated report, it was submitted, demonstrated that, as at the time that he went into custody, the applicant had been successfully completing the existing CCO.
When the matter came back before the sentencing judge on 24 August 2016, however, the judge did not call for any submissions regarding the relevance of the updated report before imposing sentence, and he made no reference to it in his sentencing remarks. Indeed, so counsel submitted, the judge said nothing to indicate that he had received this report. This was of concern, since the judge made reference to the submissions of counsel with respect to the initial report, Exhibit 1, but said nothing at all about the more favourable updated report. It was submitted that the sentencing discretion had miscarried in circumstances where the judge had indicated that the content of an updated report would influence him in determining the type of sentence to be imposed (including a determination of whether a suspended or partially suspended sentence was appropriate), yet in his reasons for sentence had cited only from the initial report, which recorded that the applicant’s ‘compliance with that order has been less than satisfactory’.
Ultimately, it was submitted that the appropriate course would be to remit the matter to the County Court so that the applicant could be resentenced in circumstances where ‘all sentencing options and all relevant reports can be properly considered’.[14]
[14]Criminal Procedure Act 2008, s 282(1)(b); R v Bennett [2006] VSCA 274, [7]; R v Roberts [2000] VSCA 46, [18]–[19].
Orally, counsel for the respondent accepted — very fairly — that the circumstances suggest that the judge had not had regard to the contents of the updated report, having simply overlooked it.
Discussion and analysis
Although the sentencing judge provided a report to this Court,[15] it did not illuminate the central issue raised by the ground of appeal (which, at the risk of repetition, asserts that the judge ‘failed to have regard to a second Judicial Monitoring Report’). Based on the judge’s reasons for sentence, however, I would infer that the judge had simply overlooked the updated report.
[15]See Criminal Procedure Act 2009, s 316.
From the judge’s musings on the plea, it is plain that he had resolved to obtain an updated report for the purposes of deciding what sentencing option (or options) to adopt. In those circumstances, the applicant was justified in thinking that the judge would, upon receipt of the updated report, pay regard to its content. Moreover, it is not disputed that, consistently with the judge’s stated intention, an updated report was in fact obtained. Despite this, however, the judge did not explicitly — nor, so it seems to me, implicitly — advert to its contents in his reasons for sentence. Rather, the judge explicitly made reference to — and read from — the earlier report, which was couched in somewhat negative terms.
If, upon reading the updated report, the judge had thought its contents to be unfavourable to the applicant — such that it might have led to a more severe sentence being imposed — the judge would have been obliged to draw that fact to the attention of the parties, so that they might address the matter by further evidence or submissions. Furthermore, had the updated report contained matters favourable to the applicant — which the judge was minded to reject — the judge again would have been bound to draw that fact to the applicant’s attention, and to have invited a
response.[16]
[16]See, generally: R v Carlstrom [1977] VR 366, 367; R v Bishop [1998] 1 VR 531, 536-7; R v Li [1998] 1 VR 637, 643; R v Downie and Dandy [1998] 2 VR 517, 520, 523; R v Roberts [2000] VSCA 46, [13]; R v Grillo [2003] VSCA 143, [15]–[17]; R v Lowe [2009] VSCA 268, [16]–[18]; SD v R (2013) 39 VR 487, 496 [39].
That said, there was not a great deal that was positive in the updated report — although it did record the fact that the applicant ‘had attended all scheduled community work days before being remanded without issue’, and had completed more than 65 hours of community work — but its general tenor was not as negative as that of the earlier report.
That the judge overlooked the updated report when imposing sentence is plain from the following passage of his reasons for sentence:
As of April this year, you have completed only 13 hours of the 300 ordered. Your counsel informed me that subsequently you have been compliant with corrections, having completed approximately 80 hours of the unpaid community work. …
Had the judge paid heed to the contents of the updated report, he would have realised that the applicant had completed over sixty five hours of community work. The judge’s unrevised reference to ’13 hours’, however, is drawn from the initial report; and his reference to ’80 hours’ reflects the inaccurate assertion about completed hours made to him by counsel. Resort to the updated report would have revealed the true picture, which, it might be thought, would have been reflected in the reasons.
In my opinion, failure to have regard to the updated report constitutes sentencing error, since the applicant was denied procedural fairness. As I have indicated, the applicant would have been justified in thinking that the judge would take its contents into account when imposing sentence. It is clear, however, that the judge did not do so. Although it could not be said the updated report was expressed in glowing terms, its flavour was not as pessimistic as its predecessor, so that it reflected more favourably — albeit not by much — upon the applicant.
Sentencing error having been established, it is appropriate to grant leave to appeal, allow the appeal and set aside the sentence imposed on 24 August 2016.
As I have indicated, the applicant sought remittal to the County Court pursuant to s 282(1)(b) of the Criminal Procedure Act 2009. With respect to the
forerunner to s 282,[17] it has been observed that the power to remit should be exercised sparingly and only in exceptional circumstances;[18] although in Bennett,[19] it seems that a denial of procedural fairness was thought to be sufficient to animate the power of remittal.
[17]See now repealed ss 568(5), (6) and (7) of the Crimes Act 1958.
[18]R v Roberts [2000] VSCA 46, [18] (Charles JA, Callaway JA and Coldrey AJA agreeing).
[19]R v Bennett [2006] VSCA 274, [7] (Redlich JA, Warren CJ and Nettle JA agreeing).
Given the particular circumstances of this case, I am of the view that the preferable course is to remit the matter to the County Court for further hearing of the plea, without prejudice to any new evidence or submissions that the parties might wish to make.[20]
[20]See Criminal Procedure Act 2009, s 282(3)(b). I note that the applicant had sought an order under s 317 of the Criminal Procedure Act 2009, directed towards obtaining material to demonstrate that the applicant had been assaulted (and suffered injury) whilst imprisoned, and was being held in protection. Given what transpired during the hearing of the present application, however, the application under s 317 was rendered redundant. Any further material relating to the applicant’s difficulties in custody may properly be put before the County Court on the remitted hearing.
Conclusion
Leave to appeal should be granted and the appeal allowed. I would remit the matter to the County Court for further hearing in accordance with these reasons.
KYROU JA:
I agree with Priest JA.
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