Christoforou v The King
[2024] VSCA 89
•8 May 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0110 S EAPCR 2023 0185 |
| JAMES CHRISTOFOROU | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | NIALL and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 April 2024 |
| DATE OF JUDGMENT: | 8 May 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 89 |
| JUDGMENT APPEALED FROM: | DPP v Christoforou (County Court of Victoria, Judge Gaynor, 3 April 2023) |
---
CRIMINAL LAW – Conviction – Applicant pleaded guilty to burglary, theft and handling stolen goods – Four police charges purportedly transferred to County Court as summary offences – Two police charges indictable offences triable summarily – Charges not properly before County Court – Leave to appeal granted – Convictions quashed.
CRIMINAL LAW – Sentence – Whether sentences on certain individual charges and associated orders for cumulation manifestly excessive – Sentences not manifestly excessive – Leave to appeal granted consequent on successful conviction appeal – Applicant resentenced.
Criminal Procedure Act 2009, ss 28, 145, 242.
DPP v Goldsmid [2023] VSCA 124 applied; Hoy v The Queen [2012] VSCA 49 considered.
---
| Counsel | |||
| Applicants: | Mr R Nathwani SC and Mr L Cameron | ||
| Respondent/s: | Mr M Stanton | ||
| Solicitors | |||
| Applicants: | SLKQ Lawyers | ||
| Respondent/s: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
TAYLOR JA:
Introduction and overview
On 22 February 2023 the applicant pleaded guilty to burglary (13 charges), theft (13 charges), attempted burglary, handling stolen goods and possession of a drug of dependence. Four police charges were also before the court. On 3 April 2023 the applicant was sentenced as follows.
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Burglary[1] | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 2 | Theft[2] | 10 years’ imprisonment | 2 months’ imprisonment | N/A |
| 3 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 4 | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 5 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 6 | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 7 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 8 | Theft | 10 years’ imprisonment | 1 year and 6 months’ imprisonment | 6 months |
| 9 | Attempted Burglary[3] | 5 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 10 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 11 | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 12 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 13 | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 14 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 15 | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 16 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 17 | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 18 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 19 | Theft | 10 years’ imprisonment | 9 months’ imprisonment | 1 month |
| 20 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 21 | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 22 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 23 | Theft | 10 years’ imprisonment | 9 months’ imprisonment | 1 month |
| 24 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 25 | Theft | 10 years’ imprisonment | 9 months’ imprisonment | 1 month |
| 26 | Burglary | 10 years’ imprisonment | 1 year’s imprisonment | 2 months |
| 27 | Theft | 10 years’ imprisonment | 2 years’ imprisonment | Base |
| 28 | Handling stolen goods[4] | 15 years’ imprisonment | 1 year and 6 months’ imprisonment | 6 months |
| 29 | Possessing a drug of dependence[5] | 1 year’s imprisonment | 2 months’ imprisonment | N/A |
| Police Charges | ||||
| 20 | Possessing Victoria Police equipment without authorisation[6] | 1 year’s imprisonment | 5 months’ imprisonment | 1 month |
| 23 | Possessing identification information for use in an indicatable offence[7] | 3 years’ imprisonment | 8 months’ imprisonment | 1 month |
| 24 | Committing an indicatable offence whilst on bail[8] | 3 months’ imprisonment | 1 month’s imprisonment | 1 month |
| 47 | Using identification information to commit an indictable offence[9] | 5 years’ imprisonment | 10 months’ imprisonment | 3 months |
Total Effective Sentence: | 7 years and 3 months’ imprisonment | |||
Non-Parole Period: | 5 years and 6 months | |||
Pre-sentence Detention Declared: | 718 days | |||
Section 6AAA Statement: | 8 years’ imprisonment with a non-parole period of 6 years | |||
| Other Relevant Orders: Forfeiture and disposal orders | ||||
[1]Contrary to s 76 of the Crimes Act 1958.
[2]Contrary to s 74 of the Crimes Act 1958.
[3]Contrary to ss 321M and 76 of the Crimes Act 1958.
[4]Contrary to s 88 of the Crimes Act 1958.
[5]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[6]Contrary to s 255(1)(a) of the Victoria Police Act 2013.
[7]Contrary to s 192C of the Crimes Act 1958.
[8]Contrary to s 30B of the Bail Act 1977.
[9]Contrary to s 192B of the Crimes Act 1958.
The applicant seeks leave to appeal against his conviction on the following ground:
1.Police Charges 23 and 47 were not properly before the sentencing court, and ought be treated as a nullity (and a specific error in the sentence below) as a result of the Magistrates’ Court impermissibly purporting to transfer those indictable triable summarily charges pursuant to ss 145 and 242 of the Criminal Procedure Act2009.
The applicant seeks leave to appeal against his sentence on the following ground:
1.In all the circumstances the sentence imposed was manifestly excessive.
Particulars:
(a)The sentences imposed on Charge 8, 27 and 28 were manifestly excessive;
(b)The cumulation ordered on Charges 8 and 27 were manifestly excessive; and
(c) The total effective sentence was manifestly excessive.
For the reasons that follow the application for leave to appeal against conviction should be granted and the convictions on police charges 23 and 47 quashed. Consequently leave to appeal against sentence should also be granted and the applicant re-sentenced as detailed below.
Summary of Offending
The offending spanned just over 12 months and often employed a recurring technique. The victims – generally young and female – advertised a room for rent on particular websites. Such advertisements usually included the address as well as information as to who else lived at the property. The applicant would arrange a pizza delivery to the targeted address and keep watch. If the delivery was unsuccessful, the applicant would force entry to the (assumed to be) unoccupied property and steal items. These included electronic items, expensive clothing, underwear, sex toys and identification documents. He would use the identification documents in his subsequent offending. On occasion he also stole cars.
Incident 1
On 31 March 2020 the applicant placed an order to Domino’s Pizza for a delivery to an address in Airport West. The male victim was not at home when the applicant observed the unsuccessful delivery. Shortly thereafter an unknown offender[10] forced entry to the premises (charge 1 – burglary). A little later the victim returned home and as he approached the front door came face to face with the offender. When asked to explain himself, the offender said that it was Jess’ house. A Nintendo switch valued at $300 was stolen (Charge 2 – theft).
Incident 2
[10]Charges 1 and 2 are put on a complicity basis.
In July 2020 an online advertisement for a housemate was placed by the victim. It included a photograph of the front of the Windsor property, a profile picture of the victim and a short biography of the housemates. On 28 July 2020 the applicant forced entry to the property (charge 3 – burglary) and stole items worth a total value of $5,500 being electronic items, jewellery, sex toys, a bag of dirty women’s underwear, a USB and a box of cat ashes (charge 4 – theft). On the same day the box of cat ashes was found on a fire hydrant 450 metres from the applicant’s address.
Incident 3
In January 2021 two female residents of a Moonee Ponds address advertised online for a replacement for a soon to depart third female resident. On 15 January 2021, when all three women were absent from the house, the applicant forced entry through the rear door (charge 5 – burglary) and stole items including jewellery, phones, computers, tablets, women’s underwear, an Australian passport and identification cards, a Victoria Police badge belonging to one resident and a set of keys to a Kia sedan (charge 6 – theft[11]). One resident returned and noticed the back door open, but assumed a pre-arranged visitor had left it open. The resident had a shower, during which she heard banging noises in the kitchen/living area. It was only after she went to her room and saw her wardrobe open that she realised the house had been broken into.
[11]Charge 6 was a rolled up charge.
On 5 February 2021 the applicant reattended the Moonee Ponds address and forced open an electronic gate, breaking it. He attempted to steal the Kia sedan using the keys taken on 15 January but was unsuccessful (charge 9 – attempted burglary).
Incident 4
In late 2020 a female advertised online for a person to join her and her female housemate at an address in Essendon. In the early hours of 26 January 2021 the offender entered the house (charge 7 – burglary) and stole items including a laptop and items of jewellery (charge 8 – theft).
On 11 February 2021 the applicant logged into the victim’s account on the real estate website.
On 7 March 2021 the victim noticed that her account had been hacked into. It had been used to send messages to other users about rooms for rent – including to the victim of incident 9, the associated profile picture had been replaced with an image from her Apple iCloud account and her mother’s credit card information, which had been saved in her PayPal account, had been used to upgrade her account to ‘premium’. When she tried to change her iCloud password, the applicant attempted to prevent her from doing so through his access to her iMessages.
Incident 5
On about 10 January 2021 the female victim placed an online advertisement for a housemate for her Flemington address. On 5 February the applicant placed an online order with Domino’s Pizza for delivery to the Flemington address with specific instructions to enter via the rear laneway. The order was in the name ‘Tommy’ and the applicant gave a mobile number he had created in a female name a week earlier (police charge 47 – use identification information to commit an indictable offence). The applicant watched the unsuccessful attempt at delivery before forcing entry to the premises (charge 10 – burglary). He stole two bras, two vibrators, an iPad, two watches, five USB sticks, a camera, a purse containing assorted identity and bank cards and a 2013 Mazda car valued at $8,000 (charge 11 – theft). The following day the Mazda was involved in a burglary of a bottle-shop in which alcohol and cigarettes were stolen. It was recovered by police 10 days later.[12]
Incident 6
[12]The theft charge is put on the basis that the applicant assumed the rights of ownership of the car but did not physically take it.
Between July and September 2020 three housemates in a flat in Maribyrnong advertised online for a housemate. Between 6 and 8 February 2021 the applicant entered the flat when it had been evacuated due to a fire in the building (charge 13 – burglary). He stole various photographic equipment, laptops, iPads, phones, sex toys, a suite case, a jewellery box and its contents and a bag of women’s underwear (charge 13 – theft[13]).
Incident 7
[13]Charge 13 was a rolled up count.
In February 2021 two housemates in Keilor East advertised online for another housemate. On 9 February 2021 the applicant entered the premises (charge 14 – burglary) and stole a laptop, iPhone, television, two watches and jewellery (charge 15 – theft). The bank of the female victim notified her that her bank card had been used in an unsuccessful attempt to sign up to a Netflix account.
Incident 8
In February 2021 a female advertised online for a housemate for a flat in Coburg. On 11 February 2021 the applicant placed an online order with Domino’s Pizza for a delivery to the Coburg address in the name ‘John’ using the same mobile number used in relation to incident 5 (police charge 47 – use identification information to commit an indictable offence). The applicant watched the unsuccessful attempt at delivery before forcing entry to the premises (charge 16 – burglary). He stole various computer equipment, an iPhone, a television, a Dyson vacuum cleaner and vibrators (charge 17 – theft).
Incident 9
In February 2021 two females advertised online for a housemate for their Essendon West house. On 1 March 2021 the applicant placed an online order with Domino’s Pizza for delivery to the Essendon West address in the name ‘Harry’. The telephone handset associated with the mobile number provided was later found in the applicant’s bedroom. The applicant watched the unsuccessful attempt at delivery before entering the premises through an unlocked back door (charge 18 – burglary). He stole various items of jewellery, a vibrator, a handbag, an external hard drive and a computer (charge 19 – theft[14]).
Incident 10
[14]Charge 19 was a rolled up charge.
On 6 March 2021 the applicant placed an online order with Domino’s Pizza for delivery to an address in Niddrie in the name ‘Jack’. The mobile telephone number used was registered by the applicant in the name of a woman the victim of a burglary in May 2020 whose property was later found at the applicant’s address (Police charge 47 – use identification information to commit an indictable offence). He gave the same mobile number as used in incident 9. The applicant observed the unsuccessful attempt at delivery and then entered the premises (charge 20 – burglary). He stole a Mazda car key, laptop, watches, purses, handbags, items of jewellery, a camera, women’s underwear, a washing basket and identification documents (charge 21 - theft[15]).
Incident 11
[15]Charge 21 was a rolled up charge.
In January 2021 a female advertised online for a housemate for her Broadmeadows flat. Between 17 and 21 March 2021 the applicant entered the flat (charge 22 Burglary) and stole a laptop, mobile phone, a sexual aid and underwear (charge 23 – theft).
Incident 12
In early 2021 three women advertised online for a housemate for their Tullamarine flat. On 1 April 2021 the applicant placed an order with Domino’s Pizza for a delivery to the address. At the time of the delivery, one woman was home but in the bathtub. The applicant observed the unsuccessful attempt at delivery before entering the premises (charge 24 – burglary). The woman in the bathtub heard noises at the front door but believed one of her housemates had returned. The applicant stole women’s underwear, a laptop and a driver licence belonging to each of the women (charge 25 - theft[16]). Police later located photographs of two of the female residents on the applicant’s phone, including of one naked in the laundry taken from a distance.
Incident 13
[16]Charge 25 was a rolled up charge.
In April 2021 a female advertised online for a housemate for her Moonee Ponds home. The advertisement included her profile picture. On 9 April 2021 at about 10.37 pm the applicant placed an order with Domino’s Pizza for a delivery to the address. The applicant used the same telephone number as used in incident 10 (Police charge 47 – use identification information to commit an indictable offence). Ten minutes later he booked a taxi to collect from the address with specific instructions for the driver to knock at the door as the person was hearing impaired and required assistance with luggage. The applicant watched as the taxi arrived, the driver knocked at the door and then departed when there was no answer. He continued to watch as, at 10.59 pm, the attempted pizza delivery was unsuccessful. The applicant then forced entry to the house (charge 26 – burglary). The applicant stole a handbag and other bags, a purse containing bank and identification cards, an iPad and a Volkswagen Golf vehicle containing a television (charge 27 – theft). The victim awoke the following morning to find her handbag and car missing.
On 12 April 2021 the victim discovered that the passwords to her Facebook and Instagram accounts had been changed and a new email address had been associated with them. Photographs from the victim’s Facebook messenger account were later found on the applicant’s phone, including one which had been cropped and depicted the victim bending over in a skirt. The applicant had also logged onto the victim’s Tinder account.
Execution of search warrant
On 15 April 2021 police executed a warrant at the applicant’s address. The Volkswagen Golf from incident 13 was parked outside. Aside from various items associated with the above burglaries and thefts, he was found in possession of various other property including:
(a)A passport and identification documents taken in a burglary from an address in Coburg on 12 February 2020 belonging to a woman who had advertised for a flatmate online.
(b)Multiple items of jewellery and underwear belonging to two women taken in a burglary from an address in Footscray in May 2020 who had advertised for a flatmate online.
(c)A driver licence, passport, house keys and underwear taken in a burglary from an address in Brunswick West on 16 June 2021 belonging to a woman who had advertised for a housemate online.
(d)A Garmin smart watch belonging to a man taken in a burglary from an address in Footscray on 12 January 2021 who had advertised for a housemate online.
(e)Flash drives belonging to a man taken in a burglary from an address in Footscray West on 1 February 2021 who had advertised for a housemate online.
(f)Gucci branded items, a laptop, jewellery box, jewellery, a USB and Victorian boat licence belonging to a woman taken in a burglary from an address in Brunswick West on 10 March 2021 (charge 28 – handle stolen goods[17]).
[17]Charge 28 was a rolled up charge.
The police also located:
(a)Victoria Police equipment (police charge 20 – possess Victoria Police equipment without authorisation).
(b)White powder and shards of crystal, being methylamphetamine (charge 29 – possess drug of dependence).
(c)Various passports (police charge 23 – possess ID information).
At the time of the offences, the applicant was on bail with respect to stalking charges (police charge 24 – commit an indictable offence whilst on bail).
The applicant participated in a record of interview on 15 April 2021 in which he made partial admissions and otherwise made denials.
Sentencing Reasons
The judge commenced her sentencing reasons[18] by summarising the offending.[19] Referring to the procedural history of the matter the judge said that the plea was not made at the first opportunity, but there had been substantial amendments to the original charges following negotiations.[20] The judge then detailed the maximum penalties for the offences.[21]
[18]DPP v Christoforou (County Court of Victoria, Judge Gaynor, 3 April 2023) (‘Reasons’).
[19]Reasons, [3]-[43].
[20]Reasons, [44].
[21]Reasons, [45].
Turning to the victim impact statements, the judge noted the widespread and ongoing distress and anxiety caused by the applicant’s offending. The judge detailed the loss of items both of monetary and sentimental value as well as the feeling of fear and insecurity felt by the victims by having their homes broken into and, in some cases, their online accounts compromised. That many of the victims were women and the applicant stole sex aids and underwear as well as items of value was noted to add a layer of apprehension and fear.[22]
[22]Reasons, [46]-[48].
Turning to the applicant’s personal circumstances the judge noted him to be 37 years of age, the second in a full sibship of four and having a maternal half-sister. He had a positive childhood. The applicant’s parents separated when he was five years old. He lived with his father and paternal grandfather while his siblings remained with their mother. The siblings all attended the same school and the applicant spent alternate weekends with them and their mother. The applicant had a reasonable relationship with his step-father, his father was supportive and nurturing and he was particularly close to his paternal grandfather, who died in 2021 after the applicant’s remand.[23]
[23]Reasons, [49]-[51].
The applicant left school after Year 8 after an unremarkable education. Thereafter he worked first for a landscape company and then completed three years of a spray-painting apprenticeship with his father’s panel beating business. That ended when the applicant discovered his father had been having a secret relationship with the mother of his long-term girlfriend. The applicant ended that relationship and began using drugs, namely speed at the age of about 20 years and amphetamines from the age of about 23 years. He had an accidental drug overdose of GHB at about that time. His longest period of abstinence was about 12 months in 2019 when he was on bail and subject to random urine drug screens. When the applicant’s family became aware of his drug use, he moved back with his father and paternal grandfather to recover. In 2013 he completed a rehabilitation program at Malvern Private. The applicant has also attended drug and alcohol counselling as a part of a number of community correction orders to which he has been subject. [24]
[24]Reasons, [51]-[55].
Despite his drug use the applicant began his own landscaping business that operated for about seven years. When he was about 26 years of age, the applicant obtained his truck licence and worked in the transport industry. At the time of his arrest he had begun part-time work with a former employer.[25]
[25]Reasons, [53].
In 2015 the applicant was involved in a six-month relationship during which his partner’s two-year old son died, either from sudden infant death syndrome or cardiac arrest. The applicant performed CPR and gave evidence at the coronial inquest in 2021. The relationship ended when both the applicant and his partner commenced substance abuse in response to the trauma. The applicant formed another relationship in 2016 during which his partner’s child accidentally consumed methylamphetamine. The applicant was charged with negligence and child abuse and remanded in custody for nine months. The associated press coverage caused the applicant considerable distress. The charges were dropped but there was a substantial delay before they were formally withdrawn, during which the applicant was on bail (and drug abstinent because of the random drug testing condition).[26]
[26]Reasons, [57]-[59].
The judge received two reports from a psychologist, Carla Ferrari, to whom the applicant reported a history of depression and anxiety, commencing in childhood. He has been intermittently medicated for those conditions since 2012 and continually on an antidepressant since 2018. Following his release on bail in 2019 the applicant made a suicide attempt and also reported suicidal ideation following his grandfather’s death. The applicant told Ms Ferrari that he engaged in the offending due to his relapse into ice use in the wake of his experiences with the children of his ex-partners. The COVID-19 restrictions further exacerbated the applicant’s anxiety and depression.[27]
[27]Reasons, [60]-[63].
In October 2021 Ms Ferrari stated that the applicant had a moderate level of post-traumatic stress disorder symptomatology and had symptoms consistent with a generalised anxiety disorder and the development of a major depressive disorder. She said that the applicant had a severe stimulant use disorder at the time of the offending and was a moderate to high risk of violent recidivism should he relapse into substance abuse.[28] In a second report dated 30 May 2022[29] Ms Ferrari said that further testing revealed a worsening of the applicant’s symptoms. He suffered moderately severe levels of depression, of the generalised anxiety disorder and of PTSD symptomatology. Ms Ferrari said that the applicant was a moderate risk of general recidivism and likely to experience custody as significantly more difficult than an individual without his conditions.[30]
[28]Reasons, [64].
[29]The Reasons in [65] incorrectly give the year as 2020. It is cited correctly in [50].
[30]Reasons, [65].
The judge noted that the applicant had written a general letter of apology to his victims[31] and undertaken an alcohol and drug program in custody.[32] References from five members of the applicant’s family expressed continuing support for him and described him as being remorseful and otherwise a kind and caring man.[33] The judge referred to the applicant’s extensive criminal history dating from 2011.[34]
[31]Reasons, [66].
[32]Reasons, [67].
[33]Reasons, [67].
[34]Reasons, [68].
With reference to the victim impact statements and appellate authority, the judge noted that offending such as that committed by the applicant is treated harshly because it strikes at the heart of the capacity of people to feel safe in their homes.[35] The judge described the applicant’s offending as ‘prolonged, organised, pre-meditated and sophisticated’. It invaded the physical and online space of many victims. The theft of intimate items and sex aids from the many female victims added to their distress.[36] The judge accepted the applicant’s emotional distress at the time of offending and his resultant collapse into drug use but found that the ‘breadth, nature, organisation and deliberation’ of it could not be explained away by his personal difficulties.[37]
[35]Reasons, [69]-[70]. The judge referred to DPP v Jovacic (2001) 121 A Crim R 497; [2001] VSCA 43 and R vHayes (1984) 1 NSWLR 740.
[36]Reasons, [71].
[37]Reasons, [72]. The judge referred to DPP v Vuco [2008] VSCA 270.
The judge took the applicant’s plea of guilty into account for its utilitarian value and augmented that value in light of the backlog of trials caused by the pandemic. The judge also considered that the applicant had some remorse and insight. It was accepted that the offending was committed to fund the applicant’s drug dependence. The applicant’s long term psychological ill health, exacerbated by his experiences relating to the children of his former partners, was considered and the judge found that this would make the applicant’s experience of imprisonment more difficult for him than for a prisoner not suffering such conditions. The judge accepted the applicant had the support of a loving and pro-social family and took into account the time he had spent on remand for charges that were ultimately withdrawn. It was noted that the applicant had used his time in custody productively.[38] The judge further accepted that the applicant’s sentence should be moderated as result of the fact that he was severely assaulted in November 2021 whilst on remand for the offending. That resulted in physical trauma and additional anxiety as well as the applicant being placed in protection.[39]
[38]Reasons, [73]-[75].
[39]Reasons, [76].
The judge found principles of just punishment, denunciation and general deterrence to be prominent in the sentencing exercise.[40] The applicant’s prospects of rehabilitation were assessed as guarded, meaning that both specific deterrence and protection of the community were important aspects of the sentencing process.[41]
Conviction
[40]Reasons, [77].
[41]Reasons, [78]-[79].
The applicant’s contentions
The applicant contends that police charges 23 and 47 were not properly before the sentencing court. Each was an indictable and not a summary offence. Neither were included on the plea indictment. Instead they were erroneously included within the notice of related summary offences. As a result the charges are a nullity and there is an error in the sentence imposed.
The respondent’s contentions
The respondent concedes that the applicant’s appeal against conviction must be allowed for the reason identified by him.
Consideration
Police charge 23 was one of possessing identification information for use in an indictable offence contrary to s 192C of the Crimes Act1958. It is punishable by a maximum of three years’ imprisonment. Police charge 47 was one of using identification information to commit an indictable offence contrary to s 192B of that Act. It is punishable by a maximum of five years’ imprisonment. They are both, therefore, indictable offences. Pursuant to s 28 of the Criminal Procedure Act 2009, each may be heard and determined summarily but neither could be transferred to the County Court pursuant to ss 145 and 242.
As this Court said in DPP v Goldsmid:
… while summary offences may be transferred from the Magistrates’ Court to the County Court for summary determination, it is not permissible to transfer indictable offences which can be tried summarily for such determination. An indictable offence can only be brought before the County Court by the accused being committed by the Magistrates’ Court to stand trial in the County Court, or by the Director filing a direct indictment.[42]
[42]DPP v Goldsmid [2023] VSCA 124, [102] (Beach, Kyrou and T Forrest JJA).
It follows that the application for leave to appeal against the conviction on police charges 23 and 47 must be granted, the appeal allowed and the convictions quashed.
It also follows that, as a consequence, there is an error in the sentence imposed upon the applicant.
Sentence
Applicant’s contentions
Beyond the consequential resentencing exercise necessary upon the setting aside of the convictions on police charges 23 and 47, the applicant argues further that the sentences imposed on charges 8, 37 and 28, the orders for cumulation on charges 8 and 27 and the total effective sentence were manifestly excessive.
The applicant rehearses the matters relied upon in mitigation before the sentencing judge, namely his plea of guilty entered during the COVID pandemic, a Renzella[43] period of custody, emotional distress and resultant drug collapse and an onerous experience of imprisonment due to psychological ill health and being housed in protection. The applicant also submits that the principles of totality and parsimony had real work to do. Against this, the impugned individual sentences, orders for cumulation and total effective sentence are argued to be manifestly excessive.
[43]R v Renzella [1997] 2 VR 88 (Winneke P, Charles and Callaway JJA).
Charge 8 was one of theft. The 18 month sentence imposed was in contradistinction to the 12 months imposed on each of the other theft charges (except charge 27) and also the 12 months imposed with respect to the associated burglary. The applicant argues that there is little in the facts of the offending to explain the different sentence imposed on charge 8. Further, the order for six months of the sentence to be served cumulatively, when only one or two months of each of the other thefts (except charge 27 which was the base sentence) were ordered to be served cumulatively is also submitted to be manifestly excessive.
The two years imposed on charge 27 is said to be manifestly excessive because it was not as serious as other thefts where the items were never recovered. Further, it is submitted that it is manifestly excessive when compared with the 12 months imposed for the associated burglary.
The sentence imposed on charge 28 is submitted to be manifestly excessive because, notwithstanding it was a rolled up offence of handling stolen goods, it was a single date offence and was less serious because it was less proximate in time to the associated burglary and theft offences.
Finally the applicant submits that, as a consequence, the total effective sentence fell outside the range available in the proper exercise of the sentencing discretion.
Respondent’s contentions - sentence
The respondent submits that beyond the necessary reduction in the head sentence and non-parole period consequent upon the absence of police charges 23 and 47 from the sentencing matrix, the identified individual sentences, orders for cumulation and total effective sentence are not manifestly excessive.
It is argued that each is within the appropriate range and at the lower end of that range. The nature and value of the items stolen with respect to charge 8 are different to those forming the bases of most other charges. While some of the goods with respect to charge 27 were returned, there was still a significant impact on the victim, particularly in circumstances where the theft facilitated access to and misuse of her personal information. Charge 28 was a rolled up charge relating to goods belonging to seven different victims including personal documents and matters of personal significance.
Consideration
The sentencing exercise facing the judge was undoubtedly a difficult one. It is clear from both her careful reasons and the structure of the sentence that the judge was conscious of all relevant sentencing principles, including that of totality.
In so far as the individual sentences and orders for cumulation imposed on charges 8 and 27 were greater than those imposed on the remaining 11 charges of theft (7 of which received a sentence of 12 months, 3 a sentence of 9 months and one a sentence of 2 months), there is a factual basis for that discrimination. Charge 8 involved the theft of a significant amount of jewellery, underwear, swimwear, house keys and a laptop. The victim’s iCloud account was compromised and the applicant actively tried to stop her changing the password to it. Charge 27 involved the theft of a handbag, identification cards, electronic items and a motor vehicle. The passwords and associated email address to the victim’s Facebook and Instagram accounts were changed, her Tinder account was compromised and a private photograph of her had been manipulated and saved to the applicant’s phone.
While there was no evidence of specific value of the items stolen before the judge, it is uncontroversial to assume it was significant. Further, the particular harm to the victims of these thefts was marked.
An assessment of the objective gravity of any theft includes consideration of what was taken, its value – either intrinsic or sentimental, from whom it was taken and all other relevant surrounding circumstances – including the purpose for which the item was taken.[44] Courts have long recognised the ongoing effects burglaries have on victims, particularly with respect to the lingering sense that the security and sanctity of a person’s home has been violated.[45] The further violation of a person’s online information, correspondence or accounts as a result of stolen personal information is, as the judge recognised, significant. It amplifies the fear and insecurity consequent upon the original theft. The return of certain physical items does not ameliorate its impact. That harm was of particular moment with respect to charges 8 and 27. The theft of personal information for subsequent on-line misuse by the applicant was grave.
[44]Chamma v The Queen; El Houli v The Queen [2020] VSCA 232, [71] (Priest, Beach and T Forrest JJA).
[45]White and Stone v The Queen [2021] VSCA 247, [66] (Beach and Kaye JJA).
That said, ‘punctilious identification of distinguishing features’[46] between the offences in the sentencing exercise facing the judge is of limited utility given the similar and repetitive nature of the offending. In such circumstances, a ‘broad-brush’ approach is, within limits, appropriate.[47]
Where a judge is entitled to adopt a broad-brush approach, disconformity between sentences on particular counts will not usually provide a sufficient basis to impugn the instinctive synthesis.[48]
[46]Hoy v The Queen [2012] VSCA 49 (Nettle and Redlich JJA), [25] (Nettle JA) (‘Hoy’).
[47]Hoy, [17] (Redlich JA).
[48]Hoy, [18] (Redlich JA).
In this case, the applicant’s offending was prolific and persistent.[49] It was executed using a tested modus operandi. The description by the judge of the offending as ‘prolonged, organised, pre-mediated and sophisticated’[50] was apt. While certain individual thefts were more serious than others, it was well open to the judge to adopt the broad-brush approach she did. Rather than demonstrate error, the differences in the individual sentences and orders for cumulation imposed on charges 8 and 27 as compared with the other theft charges – including those that received a sentence of less than 12 months – illustrate that the judge was cognisant of the inherent limitations in the broad-brush approach and the ongoing need to consider the gravity of each offence separately.
[49]DPP v Bowd [2019] VSCA 246, [28] (Maxwell P, T Forrest and Weinberg JJA).
[50]Reasons, [71].
As is apparent from its maximum penalty, the offence of handling stolen goods is a serious one. The items relevant to charge 28 came from six separate burglaries committed over 15 months. The items included jewellery, electronic devices, intimate apparel, house keys and identification documents. In all the circumstances, including consideration of the applicant’s extensive criminal history for dishonesty offending (amongst other things), the sentence imposed was not wholly outside the range available to the judge. Indeed, it was modest.
In short, the individual sentences, orders for cumulation and total effective sentence were well within the sound exercise of the sentencing discretion. General deterrence, specific deterrence, denunciation and protection of the community loomed large. And, as is clear, the judge considered and gave appropriate weight to all of the factors which could mitigate the sentence imposed upon the applicant.
It follows that ground 1 must be rejected.
In light of the successful appeal against conviction on police charges 23 and 47, the application for leave to appeal against sentence must, nonetheless, be granted, the sentence set aside and the applicant resentenced. In undertaking that exercise, we have come to the clear view that no lesser sentence on any of the individual charges should be imposed and the orders for cumulation also accord with our assessment, with the result that apart from allowing for the removal of charges 23 and 47 no lesser sentence should be imposed. We will allow the appeal and resentence the applicant to achieve that outcome.
Conclusion and Resentencing
The application for leave to appeal against conviction on police charges 23 and 47 is granted and the appeal allowed. The convictions on police charges 23 and 47 are quashed.
The application for leave to appeal against sentence is granted and the appeal allowed. The applicant is resentenced as follows:
(a)Charge 1, burglary, 12 months’ imprisonment.
(b)Charge 2, theft, 2 months’ imprisonment.
(c)Charge 3, burglary, 12 months’ imprisonment.
(d)Charge 4, theft, 12 months’ imprisonment.
(e)Charge 5, burglary, 12 months’ imprisonment.
(f)Charge 6, theft, 12 months’ imprisonment.
(g)Charge 7, burglary, 12 months’ imprisonment.
(h)Charge 8, theft, 18 months’ imprisonment.
(i)Charge 9, attempted burglary, 12 months’ imprisonment.
(j)Charge 10, burglary, 12 months’ imprisonment.
(k)Charge 11, theft, 12 months’ imprisonment.
(l)Charge 12, burglary, 12 months’ imprisonment.
(m)Charge 13, theft, 12 months’ imprisonment.
(n)Charge 14, burglary, 12 months’ imprisonment.
(o)Charge 15, theft, 12 months’ imprisonment.
(p)Charge 16, burglary, 12 months’ imprisonment.
(q)Charge 17, theft, 12 months’ imprisonment.
(r)Charge 18, burglary, 12 months’ imprisonment.
(s)Charge 19, theft, 9 months’ imprisonment.
(t)Charge 20, burglary, 12 months’ imprisonment.
(u)Charge 21, theft, 12 months’ imprisonment.
(v)Charge 22, burglary, 12 months’ imprisonment.
(w)Charge 23, theft, 9 months’ imprisonment.
(x)Charge 24, burglary, 12 months’ imprisonment.
(y)Charge 25, theft, 9 months’ imprisonment.
(z)Charge 26, burglary, 12 months’ imprisonment.
(aa)Charge 27, theft, 2 years’ imprisonment.
(bb)Charge 28, handling stolen goods, 18 months’ imprisonment.
(cc)Charge 29, possess a drug of dependence, 2 months’ imprisonment.
(dd)Police charge 20, possess police identification, 5 months’ imprisonment.
(ee)Police charge 24, commit indictable offence on bail, 1 month’s imprisonment.
The base sentence is that imposed on charge 27. Two months of the sentences imposed on charges 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 24 and 26 are to be served cumulatively to the sentence imposed on charge 27 and each other. Six months of the sentences imposed on charges 8 and 28 are to be served cumulatively to the sentence imposed on charge 27 and all other sentences. One month of the sentences imposed on charges 19, 23 and 25 and police charges 20 and 24 are to be served cumulatively on charge 27 and all other charges.
Accordingly, the applicant’s total effective sentence is six years and 11 months’ imprisonment. The applicant is to serve a minimum of five years and 3 months before becoming eligible for parole.
---
0
7
0