Donnelly v The Queen
[2020] VSCA 151
•12 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0096
| JOHN DONNELLY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | EMERTON JA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 12 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 151 |
| JUDGMENT APPEALED FROM: | [2019] VCC 152 (Judge Mullaly) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Criminal racket involving theft and ‘rebirthing’ of boats, trailers, caravans and farm equipment – Theft of motor vehicles – Dangerous driving – Firearms offences – Sixty-nine charges on indictment and six summary charges – Pleas of guilty on all charges – Four aggregate sentences – Applicant concedes that individual sentences appropriate, individually and in aggregate – Applicant challenges cumulation – Principle of totality – Whether total effective sentence and non-parole period manifestly excessive – Whether judge failed to give sufficient weight to similarity of offences and mitigating circumstances – No manifest excess – No breach of principle of totality – Leave granted but appeal dismissed.
CRIMINAL PROCEDURE – Court’s orders record a sentence of 42 months’ imprisonment for aggregate sentence 2 while reasons for sentence record sentence of 36 months – Judge pronounced sentence of 36 months at sentence hearing – Order to be corrected in line with judge’s original intention – Sentencing Act1991, s 104(5A).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | Sarah Tricarico Lawyers Pty Ltd |
| For the Crown | Mr T Bourbon | Ms A Hogan, Solicitor for Public Prosecutions |
EMERTON JA:
CROUCHER AJA:
Introduction
On 22 January 2019, the applicant entered pleas of guilty to 69 charges on indictment and six summary charges largely arising from the applicant’s operation and organisation of a criminal racket involving the theft and resale of valuable boats, caravans and farm equipment, as well as from the theft of cars, possession of firearms, handling stolen goods, dealing with the proceeds of crime, possession of drugs, making and using false documents and driving dangerously while being pursued by the police.
On 15 February 2019, the applicant was sentenced in the County Court to a total effective sentence of eight years’ imprisonment with a non-parole period of five years and six months, as set out in the Schedule.
It will be observed that the judge imposed four aggregate sentences:
(a) Aggregate sentence 1 (54 months, being the base sentence) encapsulates charges 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 22, 23, 24, 25, 26, 27, 29, 31, 33, 34, 36, 38, 42, 45, 48, 49, 52, 53, 54, 55, 56, 59, 60, 61, 64, 65, 67, 71, 74, 75, 76, 77, 79, 80, 82, 84, 85 & 89;
(b) Aggregate sentence 2 (36 months with eight months’ cumulation) encapsulates charges 3, 7, 18, 39, 46, 66, 68 and 69;
(c) Aggregate sentence 3 (18 months with six months’ cumulation) encapsulates charges 1, 2 & 58; and
(d) Aggregate sentence 4 (18 months with four months’ cumulation) refers to the sentence imposed on charges 21, 40, 41 and 47.
Offending
In March of 2016, the applicant burgled an industrial site and business, stealing expensive powered parachutes, related equipment and a ride-on mower.
From around May 2016 until the applicant’s arrest on 9 February 2017, he organised and operated a criminal racket involving the theft of boats and caravans, which he then sold to unsuspecting members of the public after changing ownership records with VicRoads. The applicant used his then girlfriend and co-accused, Laura Fenton, and another co-accused, Steven Scott, to assist in defrauding VicRoads so as to enable him falsely to claim ownership or agency of the boats and caravans in order to sell them.
The applicant pleaded guilty to stealing ten boats, some with trailers, eight caravans, eight cars and five miscellaneous items, such as hay balers and ride-on mowers. The cars and some of the miscellaneous items were not rebranded or on-sold. The applicant used the cars as his own, and used some of them to carry out the thefts of caravans, boats and other items.
Some of the items stolen by the applicant were recovered, but many were not. The total value of the thefts could not be calculated precisely, but it was in the order of hundreds of thousands of dollars. The known amount of money that the applicant secured from ordinary members of the public who thought they were buying a boat or a caravan from the legitimate owner was $214,000. However, many items were sold to persons unknown for unknown amounts.
The applicant also pleaded guilty to a charge of dangerous driving while being pursued by police. On 14 September 2016, the applicant drove a stolen vehicle at high speed over the West Gate Bridge, despite roadworks signs indicating a maximum speed of 40 kilometres per hour. The police Air Wing tracked the applicant and police on the ground attempted to intercept him. When they drove up behind his vehicle, the applicant drove into the closed left lane, manoeuvring past other cars, and back into the road works area knocking over several road safety bollards. He accelerated to speeds estimated to be 140 kilometres per hour, exiting the freeway at Power Street, South Melbourne, and eventually abandoned the car at Kavanagh Street. A police officer who was monitoring the situation saw the applicant hide a 0.22 revolver in a flower bed before leaving the scene. The pistol was found to be loaded with seven rounds of ammunition.
The applicant pleaded guilty to a single rolled-up charge of being a prohibited person in possession of firearms over the period 14 September 2016 to 9 February 2017. In addition to the revolver found in the applicant’s possession following the car chase incident, a modified AR-15 assault rifle with homemade barrels, a silencer, and a laser sight and another 0.22 calibre revolver, were located at a storage facility and a double barrel shotgun with rifle ammunition was found at the applicant’s family home.
Reasons for sentence
The judge described the crimes involving the thefts of boats, caravans, campervans and other equipment as ‘grave examples of the scheme of stealing and then, through false documents, on selling to others’ and as ‘serious examples’ of ‘rebirthing type crimes’.[1] He said:
[I]t should not be forgotten that caravans and boats are often much valued items by their owners who enjoy nothing better than time away caravanning, or on their boats fishing. To have these prized items taken from outside a house and then sold on to another enthusiast is a concerning thing for the owners. They simply lose not just the thing, but the opportunity to do what they enjoy, until it can be replaced - if indeed it ever can be. Those matters are not overlooked simply because you, Mr Donnelly — with the co-accused … Ms Fenton and Mr Scott — stole and rebirthed, and sold onto other persons these goods at almost an industrial level.[2]
[1]DPP v Donnelly [2019] VCC 152, [12] (‘Reasons’).
[2]Ibid [24].
The judge noted the contributions of Ms Fenton and Mr Scott to the criminal racket but described the applicant as ‘the organising mind and key criminal force in [the] whole dreadful scheme’ and the applicant’s culpability for the crimes to be ‘very high’.[3] They were serious examples of the crime of theft, making and using false documents, and obtaining property by deception.[4]
[3]Ibid [30].
[4]Ibid.
The judge then turned to — and treated as a separate matter — the thefts of the cars. The applicant stole a truck and seven expensive cars (including three Mercedes-Benz, one of which was valued at $300,000), some of which were used in the commission of other crimes. A number of the cars were stolen while garaged at private homes and some bore stolen number plates. One of the cars was used in the West Gate Bridge incident described in paragraph 8 above. The judge viewed the Air Wing footage and described the applicant’s driving while evading police on the West Gate Bridge as ‘frightening and certainly dangerous.’[5]
[5]Ibid [32].
As for the weapons offences, the judge noted that the applicant was a ‘prohibited person’ who should not have been in possession of any firearms, let alone the ‘very concerning’ modified AR-15 assault rifle with homemade barrels, a silencer and a laser sight.[6] The judge considered the single rolled-up charge of being a prohibited person in possession of firearms to be ‘a particularly serious example of the charge’[7] and observed that the courts had consistently emphasised the need for stern punishment for this offence in order to denounce and deter.[8]
[6]Ibid [33].
[7]Ibid.
[8]Ibid [34].
The judge noted that while the applicant was on bail at the time of the offending and had pleaded guilty to a bail offence, the applicant’s criminal record was not lengthy and involved mainly driving offences. His Honour described the new offending as ‘a quantum leap’.[9]
[9]Ibid [37].
The judge then turned to consider the applicant’s personal circumstances. He recognised that the applicant had experienced pressure, having a young family while conducting two businesses, which led to serious drug abuse (including the use of methamphetamine),[10] coupled with a personality pathology which Dr Matthew Barth, a psychologist who provided a report on the plea, described as being ‘characterised by a propensity for reckless, aggressive and impulsive behaviour’.[11] The judge described the applicant’s diagnosis of an antisocial personality disorder as ‘troubling’ and emphasised the need for reform, but took into account the family support that the applicant enjoyed.[12] The judge said he was ‘guarded as to the likely success‘ of reform, but acknowledged that the applicant was doing what he could to rehabilitate while on remand.[13]
[10]Ibid [42]–[43].
[11]Ibid [46].
[12]Ibid [48].
[13]Ibid [49].
As to remorse, the judge took the applicant’s pleas of guilty as a sign of remorse and considered it to be important. He recognised that there were also other signs of remorse.[14]
[14]Ibid [50].
In concluding, the judge said that he had reconsidered the gravity of the offending over the 11 month period, its organised nature, its brazen aspects, the aspects of the dangerousness in the driving episode and the concerning possession of firearms.[15] He said he had revisited the question of the applicant’s moral culpability, given what was said of the applicant’s collapsed business and his deterioration due to drug use, and that he had looked again at the applicant’s efforts and commitment to rehabilitate and the applicant’s strong family support.[16] He said:
In other words, I endeavoured to ensure that I engaged in individualised sentencing. What I concluded is that nothing other than a significant, stern sentence of imprisonment was appropriate. This offending was too serious for anything less than years of gaol, grave as that always is.[17]
[15]Ibid [53].
[16]Ibid.
[17]Ibid.
Proposed ground of appeal and submissions
On 15 May 2019, the applicant filed a notice of appeal proposing a single ground of appeal, being that the orders for cumulation, total effective sentence and non-parole period imposed were manifestly excessive. The applicant submits that the judge gave insufficient weight to:
(e) the principle of totality;
(f) the similarity of the offences for which cumulation was ordered, when aggregate sentences were imposed for multiple offences;
(g) the age of the applicant and his limited prior criminal history; and
(h) the value of the applicant’s pleas of guilty.
In relation to the issues of cumulation and totality, the applicant submits that:
(i) the order for cumulation in respect of aggregate sentence 3 was excessive;
(j) the order for cumulation in respect of aggregate sentence 2 was excessive;
(k) the order for cumulation in respect of the dangerous driving charge was manifestly excessive; and
(l) the orders for cumulation produced a total effective sentence that was almost twice the length of the base sentence.
The applicant concedes that the sentencing judge imposed appropriate sentences, individually and in aggregate. However, he submits that the judge ought to have imposed less cumulation to ensure the total sentence properly gave effect to the principle of totality.
The respondent submits that the judge gave appropriate weight to all of the relevant circumstances of the offending and the personal circumstances of the applicant, and imposed a sentence that fell within the range of sentencing options that were available.
Analysis
The applicant submits that in ordering cumulation, the judge gave insufficient weight to the similarity of the offences for which cumulation was ordered, when aggregate sentences were imposed for multiple offences.
In order to consider whether cumulation on aggregate sentences 2 and 3 was excessive having regard to the similarity of the offences, it is necessary to understand the offending covered by aggregate sentence 1, which is the base sentence.
The nature and extent of offending for aggregate sentence 1
Aggregate sentence 1 covers no fewer than 49 offences, which may broadly be described as the ‘criminal racket offences’. They include 19 charges of theft, 11 charges of obtaining property by deception, 14 charges of making a false document, two charges of using a false document, and one charge each of attempting to obtain property by deception, possessing identification information belonging to another and using such information.
It is convenient, in considering the nature of these offences and the extent of their similarity with the offences that attracted aggregate sentences 2 and 3, to detail a small sample of the aggregate sentence 1 offences.
Charges 6 and 8: On 17 April 2016, a Whittley Clearwater speedboat and Mackay trailer were stolen by unknown persons from outside a house on Ramblers Road, Portarlington. The applicant stole this boat by assuming the rights of the owner between 12 May and 19 June 2016.
On 12 May 2016, the applicant registered the boat in his name at VicRoads, purporting to be its owner. On 16 June 2016, the applicant advertised the boat for sale on eBay using his username “jdconk”. The boat and trailer were sold to an unknown person for $30,400. They were valued at $35,000 and have not been recovered.
Charges 11, 12 and 45: On 1 August 2016, an Echo Kavango campervan, which had been parked in the yard of a Holden dealership in Wendouree, was stolen by an unknown person or persons. The campervan was the property of the owner of the dealership.
Between 1 August and 12 September 2016, the applicant applied to VicRoads to register the campervan as ‘Paul McCormack’. On 1 September 2016, the campervan was transferred by the applicant into the name of ‘Clinton McLean’, then transferred it into his own name on 12 September 2016 using a false VicRoads application.
On 10 October 2016, the applicant advertised the campervan for sale on caravancampingsales.com.au and on eBay, purporting to be the true owner. On 6 November 2016, he was contacted by potential purchasers. A price of $31,000 was agreed, with agreement on a reduced price of $30,000 once the van was inspected. Police subsequently located the registration plate of the campervan during a search of applicant’s property on 9 February 2017, together with related documents and photographs of the campervan. The campervan was valued at $50,000.
Charges 38, 42, 52: Between 23 and 24 October 2016, a Goldstream Sovereign caravan was stolen by an unknown person or persons from Menhennet Drive, Delacombe. The owner had parked the caravan in his driveway.
On 11 November 2016, the applicant’s co-accused, Ms Fenton, attended at VicRoads at Geelong in possession of the caravan, assuming the rights of the owner, to have the caravan inspected for registration purposes. Ms Fenton produced false documents provided by the applicant, purporting to show that she had purchased the caravan from a named person residing in Langwarrin. She then made a false application to VicRoads to have the caravan registered in her name.
On 21 November 2016, the applicant advertised the caravan (with no reserve price) on an eBay auction using the username “nicknack8787”. A prospective purchaser contacted the applicant, who said that he was selling the caravan on behalf of his friend, ‘Laura’. On 26 November 2016, the applicant sold the caravan for $12,100, completing a bill of sale which listed Ms Fenton as the seller. The value of the caravan was approximately $50,510.
Charges 55–56, 59: On 17 June 2016, unknown persons attended residential premises in Colac and stole an Ally Fisher Western Craft 6000 boat and a 2005 McKay tandem trailer. The boat and trailer were owned by a person who had left them in his driveway.
On 22 December 2016, Ms Fenton and the applicant attended the Geelong VicRoads office in possession of the boat and trailer, assuming the rights of the owner. Ms Fenton claimed to be the agent for ‘Stanoja Jovanovic’ and provided a false bill of sale and related documents produced by the applicant which purported to show that Stanoja Jovanovic had purchased the boat and trailer from another named person on 10 October 2016.
On 25 December 2016, the applicant advertised the boat and trailer on eBay using the username “nicknack8787” with no reserve price. The winning bidder paid $25,110 and collected the boat from the applicant on 5 January 2017. The value of the boat and trailer was approximately $40,000.
Charges 67, 71, 75: On 11 January 2017, the applicant stole a Jayco Dove caravan that had been parked on the nature strip of a residential property in Clifton Springs by its owner.
On 18 January 2017, Ms Fenton attended the VicRoads office at Hoppers Crossing in possession of the Jayco caravan, assuming the rights of the owner. Ms Fenton purported to be the agent for a named person and produced a false VicRoads application for transfer prepared by the applicant, purporting to be signed by the named person as owner and giving Ms Fenton’s details as agent. The application was supported by a false bill of sale which stated that the caravan had been sold by another named person on 7 January 2017.
On 19 January 2017, the applicant advertised the caravan on eBay using the username “the-zachyyy”. The advertisement included photographs of the caravan, one of which showed Ms Fenton in the background.
On 22 January 2017, a New South Wales purchaser known as ‘Daniel’ offered $18,796 for the caravan. On 1 February 2017, police recovered the caravan at a storage facility rented by the applicant at Moolap prior to its delivery to ‘Daniel’. The applicant subsequently spoke to ‘Daniel’ and explained that the caravan had been stolen along with a number of other vehicles. The value of the caravan was approximately $24,500.
It will be observed that the offending followed a pattern: the theft of a boat, trailer and/or caravan from premises or areas near or adjacent to premises such as driveways or front lawns; the re-registration of the stolen boat, caravan or trailer using false documents produced by the applicant; and its subsequent sale to a ‘bidder’ on a digital platform. Such crimes are commonly referred to as ‘rebirthing’ crimes.
The applicant was sentenced to a period of imprisonment of 54 months (four years and six months) for the criminal racket offences.
The nature and extent of offending for aggregate sentence 3
Aggregate sentence 3 related to three offences: Charge 1 (burglary), Charge 2 (theft) and Charge 58 (obtaining property by deception). These offences occurred before the criminal racket offences and were treated as a discrete package of offending.
On 8 November 2015, the applicant attended the premises of Aerochute International Pty Ltd posing as a prospective customer and met with its CEO, Stephen Conte. Aerochute built and distributed specialised ‘flying machines’. The applicant was taken on a test flight. Four days later, on 12 November 2015, Mr Conte went to the applicant’s home in Drysdale to determine its suitability for the use of the Aerochute flying machines. On 29 November 2015 and 22 March 2016, Mr Conte contacted the applicant to see whether he was interested in buying one of the flying machines. The applicant made no purchase.
However, between 20 and 26 March 2016, the applicant entered Aerochute’s property and stole four Aerochute powered parachutes, six elliptical parachutes, radio headsets, flying suits, helmets and associated clothing, and a ride-on lawn mower, the total value of which was approximately $150,000.
Many months later, on 20 December 2016, the applicant contacted Mr Conte, purporting to be a prospective purchaser of two propellers for the Aerochute machines. On the same day, Ms Fenton contacted Mr Conte on the applicant’s mobile phone using the name ‘Leah’ and agreed to purchase the propellers for $1,947.50. She gave Mr Conte the details of a credit card in a false name for the purchase of the propellers. The card was subsequently declined. On 6 January 2016, Ms Fenton provided Mr Conte with different card details for the purchase of the propellers, which cleared. Mr Conte then delivered the propellers to an unknown third person. After the delivery, the owner of the second credit card contacted Mr Conte to inform him that the purchase was fraudulent. Mr Conte was unable to contact Ms Fenton again to organise an alternative payment.
On 9 February 2017, police located three of the four Aerochute machines at the applicant’s property, together with an elliptical parachute, flying suits, radios and one of the propellers purchased by Ms Fenton. Due to their damaged condition, the value of the goods that were returned to Aerochute was approximately $10,000.
Aggregate sentence 3 is a term of one year and six months’ imprisonment. Six months of the aggregate sentence was ordered to be served cumulatively on the base sentence of four years and six months’ imprisonment (aggregate sentence 1).
The applicant submits that the order for six months’ cumulation (representing 33 per cent of aggregate sentence 3) for the three offences covered by aggregate sentence 3 is manifestly excessive, given the similarity of the offending and the extent of the offending covered by aggregate sentence 1 (the criminal racket offences). Aggregate sentence 1 covered 19 charges of theft and 11 charges of obtaining property by deception (as well as a plethora of charges for making and using false documents and other matters) as opposed to aggregate sentence 3, which covered only one charge of theft and one charge of obtaining property by deception. While the theft charge was substantial, the theft charges the subject of aggregate sentence 1 included property valued at $35,000, $120,000, $50,000 and $75,000, and the obtaining property by deception charges arose from the applicant selling items he did not own valued at $30,400, $30,000, $35,001 and $25,110.
The applicant submits that the similarity of the offending and the extent of the offending covered by aggregate sentence 1 (the criminal racket offences) meant the principle of totality required that cumulation be appropriately moderated.
The nature and extent of offending for aggregate sentence 2
Aggregate sentence 2 relates to eight charges of theft. The offences in question involved the theft of motor vehicles: eight cars and a truck. Some of the stolen cars were used by the applicant to carry out further thefts. One was involved in the West Gate Bridge incident.
The offences were as follows:
(a) Charge 3: On 22 February 2016, a Mercedes-Benz C250 was stolen by unknown persons from a residence in Balwyn North. On 2 May 2016, the applicant stole the vehicle by assuming the rights of the owner. He drove it to a service station on the Bellarine Highway with false number plates.
(b) Charge 7: On 29 January 2016, a Land Rover was stolen by unknown persons from Doreen. On 5 June 2016, the applicant assumed the rights of the owner by placing on the car number plates that had previously belonged to a vehicle registered to the applicant’s business.
(c) Charge 18: In August 2016, a Mercedes-Benz AMG was stolen by unknown persons from Point Lonsdale. On 14 September 2016, the applicant was found driving this vehicle, which carried false number plates (this was the West Gate Bridge incident).
(d) Charge 39: In August 2016, a Mitsubishi Fuso truck registered to Thrifty Car and Truck Rentals was stolen by unknown persons from Wendouree. On 10 November 2016, the applicant assumed the rights of the owner by driving it to steal a hay baler (Charge 40). When recovered, the truck had been repainted to remove the Thrifty signage and had false number plates.
(e) Charge 46: On 20 July 2016, a Ford Territory was stolen by unknown persons from a home in Lara. On 16 November 2016, the applicant assumed the rights of the owner by driving it while stealing a plough (Charge 47). He ‘rebirthed’ the car by attaching number plates from an older Ford Territory that he owned at the time.
(f) Charge 66: In November 2016, a Holden Club Sport was stolen by unknown persons from Frankston. Between 11 January and 9 February 2017, the applicant assumed the rights of the owner. When located, it had an altered VIN and new registration plates. It had been registered in the name of the applicant’s wife and, in it, police discovered handwritten notes regarding its ‘rebirthing’.
(g) Charge 68: Between 11 and 12 November 2016, a Toyota Land Cruiser was stolen by unknown persons during a burglary in Patho. Between 11 January and 31 January 2017, the applicant assumed the rights of the owner, using it to steal two caravans (Charges 67 and 84).
(h) Charge 69: On 29 April 2016, a Mercedes-Benz SL500 was stolen by two known persons from a house in Drumcondra. On 17 January 2017, it was located, bearing false registration plates, at a storage unit in Drysdale rented by the applicant. A photograph of the false plates was located on a phone the applicant left behind in the police pursuit as part of the West Gate Bridge incident.
Aggregate sentence 2 is three years’ imprisonment with eight months’ cumulation on the base sentence. The applicant submits that given the large number of theft offences dealt with by aggregate sentence 1, the cumulation ordered in relation to aggregate sentence 2 was too high. The pattern of repeated and similar offending engaged in by the applicant required the sentencing judge to give significant weight to the principle of totality.
Dangerous driving charge
Charge 19 relates to a charge of dangerous driving while being pursued by the police, as described in paragraph 8 above. The applicant was sentenced to 18 months’ imprisonment and it was ordered that ten months of the 18 month sentence be served cumulatively on the base sentence.
The applicant submits that the 18 month sentence for this individual offence, being 50 per cent of the available maximum penalty, is stern but within the range open to the judge, but that the order that more than half of the sentence be served cumulatively was manifestly excessive. The applicant submits that, while he had prior convictions for driving offences (including driving in a manner that was dangerous, driving under the influence and driving while disqualified), none of them related to dangerous or reckless driving specifically.
Mitigating factors
The applicant submits that the judge gave insufficient weight to his age, which was 35 at the time of sentencing, and his prior criminal record. The applicant also contends that in determining the extent of the orders for cumulation, insufficient weight was given to the value of the applicant’s pleas of guilty.
The judge took into account the applicant’s circumstances as a parent of a young family trying to run two businesses. As set out above, he described the applicant’s criminal record as ‘not lengthy and mainly involving driving offences’[18] and treated this offending as a ‘quantum leap’.[19] The judge noted that the applicant was on bail at the time of the offending but paid detailed attention to the applicant’s prospects of rehabilitation.
[18]Ibid [37].
[19]Ibid.
However, it is the case, as the respondent submitted, that neither the applicant’s age nor his limited prior criminal history were particularly significant considerations in the sentencing exercise, as the applicant could not be said to be a young or youthful offender and while his criminal record was limited, equally, he was not someone who could rely on his prior good character. The judge had regard to all of the matters which were pressed by the applicant in mitigation, including the delay caused by the complex resolution negotiations;[20] his pleas of guilty;[21] his antisocial personality disorder;[22] the strong family support that he enjoyed;[23] and his recent insight into ‘the destructive nature of his drug use’ as well as his positive conduct while in custody.[24]
[20]Ibid [50].
[21]Ibid.
[22]Ibid [45]–[48].
[23]Ibid [40], [48].
[24]Ibid [44].
The judge also had regard to the background to the offending, which, while not mitigatory, provided context to the offending.[25] The judge concluded, after balancing all of the relevant circumstances, that the applicant’s offending was of such seriousness that it warranted a significant term of imprisonment.[26]
[25]Ibid [39]–[44].
[26]Ibid [53].
The respondent points out that, in addition to allowing the utilitarian benefit of the applicant’s guilty plea, the judge also made a positive finding as to the applicant’s remorse, which was not specifically pressed by his counsel during the plea. The respondent contends that this demonstrates that the judge gave adequate consideration to the applicant’s guilty pleas.
However, the applicant submits that the expressed intent to give a benefit to the applicant flowing from these factors in mitigation was not reflected in the orders for cumulation in this case.
Cumulation and totality
The base sentence of four years and six months’ imprisonment (aggregate sentence 1) and the orders for cumulation produced a total effective sentence of eight years’ imprisonment, of which three years and six months resulted from orders for cumulation.
The applicant submits that, in ordering cumulation with respect to aggregate sentences 2 and 3 and the sentence for dangerous driving, the judge did not properly give effect to the principle of totality. The orthodox approach to cumulation described by the High Court in Johnston v The Queen,[27] and applied by this Court in DPP (Cth) v KMD,[28] is to impose individually appropriate sentences first, with the consideration of totality then guiding the determination of how much cumulation should be ordered.
[27](2004) 78 ALJR 616, 624 [26]; [2004] HCA 15 (Gummow, Callinan and Heydon JJ).
[28][2015] VSCA 255, [96] (Maxwell P, Weinberg and Beach JJA).
The judge was aware of the need to apply the principle of totality in sentencing the applicant, stating in the Reasons:
[M]ost importantly I have kept to the fore the important principle of totality so as to ensure that [the applicant’s] total sentence is no more and no less than what is appropriate and proportionate to [the applicant’s] overall criminality in this period of time.[29]
[29]Reasons [54].
However, the applicant submits that, at almost twice the length of the base sentence of four years and six months’ imprisonment, the orders for cumulation produced a total effective sentence and non-parole period that are manifestly excessive. The particular orders for cumulation submitted to give rise to manifest excess — on aggregate sentences 2 and 3 and on the sentence for dangerous driving — added an extra two years to the applicant’s sentence.
Whether a sentence offends the principle of totality is directed to the broader question of whether the total sentence is proportionate to the offender’s overall criminality.[30] In the case of sentencing for multiple offences, the principle of totality requires a sentence that is a ‘just and appropriate measure of the total criminality involved.’[31] The sentence should be proportionate to the total criminality of an offender’s conduct.[32] After the sentencing judge has arrived at what is considered to be an appropriate sentence, he or she must consider whether the resulting sentence needs further adjustment so as not to ‘offend the totality principle because, looking at the prisoner’s criminality as a whole, the outcome is, in its totality, not ”just and appropriate”’.[33] The adjustment involves subtle considerations which may ‘result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed’.[34]
[30]Azzopardi v The Queen (2011) 35 VR 43, 59–60 [57]; [2011] VSCA 372 (Redlich JA) (‘Azzopardi’).
[31]Postiglione v The Queen(1997) 189 CLR 295, 307–8; [1997] HCA 26 (McHugh J) (citations omitted) (‘Postiglione’); Azzopardi (2011) 35 VR 43, 59–60 [57].
[32]See generally Mill v The Queen (1988) 166 CLR 59, 63; [1988] HCA 70; Azzopardi (2011) 35 VR 43, 59–60 [57].
[33]Postiglione (1997) 189 CLR 295, 341 (Kirby J).
[34]Ibid.
As this Court said in Azzopardi, the factors which combine to inform the instinctive synthesis are those which also determine whether an individual sentence is manifestly excessive, namely the objective gravity of the offence, current sentencing practice, the maximum penalty, matters in mitigation and matters personal to the offender.[35] While those factors enable the identification of a relevant range of sentences available for that offence, more subtle considerations are at work in determining the total effective sentence which sufficiently reflects the offender’s total criminality.[36]
[35]Azzopardi (2011) 35 VR 43, 60 [58].
[36]Ibid.
The applicant has been sentenced to a long term of imprisonment for a large number of offences and for a variety of offending, albeit that the bulk of the offending was of a similar kind. Most of the applicant’s offending (that covered by aggregate sentences 1, 2, 3 and 4) involved dishonesty offences. None of these offences involved threats or violence, but they did form part of a pattern of thieving and repurposing stolen goods using false identities and documents that was undertaken on an industrial scale. The remaining indictable offences involved offending of a different kind: dangerous driving while being pursued by police and a (rolled-up) firearms offence. Both of these offences were serious examples of offending of the relevant kind. The applicant’s possession of a number of firearms, including a modified automatic weapon, is especially concerning and would be of concern even if he were not a prohibited person.
The judge referred to the offending captured by Charge 19 (dangerous driving) as ‘frightening’ and ‘certainly dangerous’.[37] We agree that this offending was, by any measure, a serious example of the relevant offence. Weaving in and out of traffic on the West Gate Bridge at high speed is breathtakingly dangerous and imperils all other drivers on the road. This offending was quite separate and distinct from the criminal racket offences and the motor vehicle thefts, notwithstanding the deployment of one of the stolen cars in the offending. Moreover, the applicant’s criminal record revealed a poor history of driving, including a prior conviction for dangerous driving for which he was sentenced to a suspended sentence of imprisonment. Although the offending captured by Charge 19 was far more serious in nature, the applicant’s prior driving history remained a relevant consideration. In our view, it was well open to the judge to order that ten months be served cumulatively on the base sentence.
[37]Reasons [32].
While the applicant makes no complaint about it, the same may be said of the sentence of 30 months’ imprisonment, with 12 months’ cumulation, imposed in respect of the rolled-up firearms charge. This offending involved possession, as a prohibited person, of two revolvers, a shotgun and a modified assault rifle. This was distinct and serious offending in respect of which the judge was well entitled to direct 12 months’ cumulation.
It remains to consider, however, whether the orders for cumulation on aggregate sentences 2 and 3 offended the principle of totality.
Having regard to the extent of the criminal racket offences and to the similarity between the Aerochute offending (covered by aggregate sentence 3) and criminal racket offences, the order for six months’ cumulation for aggregate sentence 3 might be regarded as high. However, the aggregate sentence 3 offending also included burglary, which was a critical component of the offending, the applicant having visited the premises prior to the burglary posing as a customer and then returned to steal selected equipment. The items stolen were not ‘common or garden’ objects that were widely available, but were specialised and unusual technical equipment, and the theft involved elements of planning and bare-faced deceit. The offending covered by aggregate sentence 3 was serious, comprised a discrete package of conduct and concerned property valued at more than $100,000. Similarities in the nature of the offending captured by aggregate sentences 1 and 3, and the extent of the offending captured by aggregate sentence 1, required the judge to order a substantial measure of cumulation. In our view, six months’ cumulation was open.
The level of cumulation ordered on the sentence for the motor vehicle thefts (aggregate sentence 2) might also be thought to be high, having regard to the similarity of that offending with the criminal racket offences and the extent of the criminal racket offences. The motor vehicle thefts could have been brought entirely under the umbrella of the criminal racket offences. However, similarities in the nature of the offending captured by aggregate sentences 1 and 2, and the extent of the offending captured by aggregate sentence 1, did not preclude the judge from ordering a substantial measure of cumulation on aggregate sentence 2. Given the number of vehicle thefts, the value of the vehicles stolen, and the dishonesty involved in the steps that were taken to ‘rebirth’ or reregister the vehicles, an order for eight months’ cumulation on the sentence of three years for the motor vehicle thefts was open to the judge.
The judge gave careful consideration to the principle of totality. He considered whether the resulting sentence needed adjustment, having regard to the applicant’s criminality as a whole and to the mitigating circumstances.
We accept that the total effective sentence of eight years’ imprisonment imposed on the applicant is stern, having regard to his offending overall, his personal circumstances and his pleas of guilty. It would have been open to the judge to order less cumulation on aggregate sentences 2 and 3 and/or the dangerous driving sentence, and to fix a lesser total effective sentence.
However, manifest excess will only be made out if it can be shown that the sentence was wholly outside the range of the sentencing options available to the sentencing judge.
It has not been shown that the sentence is wholly outside the range of sentencing options available for the offending in question, which was serious, protracted offending over a period of more than 11 months and included a hair-raising dangerous driving incident and a very concerning firearms offence. This offending attracted a stern sentence, notwithstanding the mitigating factors and the applicant’s the pleas of guilty.
For the same reasons, it was open to the judge to conclude that the outcome of the sentencing exercise was, in its totality, just and appropriate. Accordingly, we are not satisfied that the total effective sentence is in breach of the principle of totality.
Furthermore, the non-parole period fell well within the range open to the judge. At five years and six months, the non-parole period also bore an entirely appropriate relationship to the total effective sentence of eight years’ imprisonment.
Conclusion
For these reasons, while we would grant leave to appeal, the appeal must be dismissed.
Orders below
The Record of Orders dated 15 February 2019 records a sentence of imprisonment for 42 months for aggregate sentence 2, while the judge’s sentencing remarks gave a figure of 36 months.
At a mention on 25 July 2019, the judge confirmed that his intention was to impose the sentence he pronounced in his sentencing remarks viva voce, and that he signed the Record of Orders without noticing the error. His Honour nevertheless declined an application to amend the sentence pursuant to s 104A(1) of the Sentencing Act1991 because he considered himself functus officio and, in any event, the matter was already before this Court.
It was not submitted on behalf of the applicant that the judge’s error could have made any difference to the judge’s reasoning or the sentences imposed. Nor, in the particular circumstances, could it have. It was simply a clerical mistake or slip when preparing the Record of Orders.
The respondent submitted that this Court should direct that the Record of Orders be amended pursuant to s 104A(5A) of the Sentencing Act.
Subsections (1) and (5A) of s 104A provide as follows:
Correction of sentences by Supreme Court on judicial review
(1) The judge or magistrate who gave judgment or passed sentence, or purported to give judgment or pass sentence, on the trial or hearing of an offence may, on his or her own initiative or on an application made on behalf of the defence or the prosecution, amend the judgment or sentence or purported judgment or sentence if satisfied—
(a) that it contains—
(i) a clerical mistake; or
(ii) an error arising from an accidental slip or omission; or
(iii) a material miscalculation of figures or a material mistake in the description of any person, thing or matter; or
(iv) a defect of form; or
(b) that it fails to deal with a matter that it would have undoubtedly dealt with in accordance with the amendment if the attention of the judge or magistrate had been drawn to it.
…
(5A) In determining an application for leave to appeal against a judgment or sentence or in determining the appeal, the Court of Appeal may direct the amendment of the judgment or sentence to which the application or appeal relates if satisfied of the matters referred to in subsection (1)(a) or (b), whether the application is granted or refused or the appeal is allowed or dismissed.
Plainly, the present error is caught by s 104A(1)(a)(i) or (ii) or both. Accordingly, pursuant to s 104A(5A), we will direct that the Record of Orders be amended to reflect the judge’s intention, namely that the aggregate sentence 2 was 36 months’ imprisonment.
SCHEDULE
Charge on Indictment C1711257 Offence Maximum Sentence Cumulation 1. Burglary (contrary to s 76 of the Crimes Act 1958) 10 years 18 months (aggregate sentence 3) 6 months 2. Theft (contrary to s 74(1) of the Crimes Act 1958) 10 years 18 months (aggregate sentence 3) - 3. Theft 10 years 36 months (aggregate sentence 2) 8 months 4. Negligently dealing with the proceeds of crime (contrary to s 194(4) of the Crimes Act 1958)[38] 5 years 9 months 1 month 5. Making a false document (contrary to s 83A(1) of the Crimes Act 1958) 10 years 1 month 6. Theft 10 years 54 months (aggregate sentence 1) Base 7. Theft 10 years 36 months (aggregate sentence 2) - 8. Obtaining property by deception (contrary to s 81(1) of the Crimes Act 1958) 10 years 54 months (aggregate sentence 1) - 9. Using or supplying identification information (contrary to s 192B of the Crimes Act 1958) 5 years 54 months (aggregate sentence 1) - 10. Theft 10 years 54 months (aggregate sentence 1) - 11. Theft 10 years 54 months (aggregate sentence 1) - 12. Making a false document 10 years 54 months (aggregate sentence 1) - 13. Theft 10 years 54 months (aggregate sentence 1) - 14. Making a false document 10 years 54 months (aggregate sentence 1) - 15. Theft 10 years 54 months (aggregate sentence 1) - 16. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 17. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 18. Theft 10 years 36 months (aggregate sentence 2) - 19. Dangerous driving while pursued by police (contrary to s 319AA(1) of the Crimes Act1958) 3 years 18 months 10 months 20. Prohibited person possess firearm (contrary to s 5(1) of the Firearms Act1996)[39] 1200 penalty units or 10 years 30 months 12 months 21. Theft 10 years 18 months (aggregate sentence 4) 3 months 22. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 23. Theft 10 years 54 months (aggregate sentence 1) - 24. Using a false document (contrary to s 83A(2) of the Crimes Act 1958) 10 years 54 months (aggregate sentence 1) - 25. Theft 10 years 54 months (aggregate sentence 1) - 26. Theft 10 years 54 months (aggregate sentence 1) - 27. Making a false document 10 years 54 months (aggregate sentence 1) - 29. Theft 10 years 54 months (aggregate sentence 1) - 31. Making a false document 10 years 54 months (aggregate sentence 1) - 33. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 34. Theft 10 years 54 months (aggregate sentence 1) - 36. Making a false document 10 years 54 months (aggregate sentence 1) - 38. Theft 10 years 54 months (aggregate sentence 1) - 39. Theft 10 years 36 months (aggregate sentence 2) - 40. Theft 10 years 18 months (aggregate sentence 4) - 41. Attempting to obtain property by deception (contrary to s 321M & 81(1) of the Crimes Act 1958) 5 years 18 months (aggregate sentence 4) - 42. Making a false document 10 years 54 months (aggregate sentence 1) - 45. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 46. Theft 10 years 36 months (aggregate sentence 2) - 47. Theft 10 years 18 months (aggregate sentence 4) - 48. Theft 10 years 54 months (aggregate sentence 1) - 49. Making a false document 10 years 54 months (aggregate sentence 1) 52. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 53. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 54. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 55. Theft 10 years 54 months (aggregate sentence 1) - 56. Making a false document 10 years 54 months (aggregate sentence 1) - 58. Obtaining property by deception 10 years 18 months (aggregate sentence 3) - 59. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 60. Theft 10 years 54 months (aggregate sentence 1) - 61. Making a false document 10 years 54 months (aggregate sentence 1) - 64. Theft 10 years 54 months (aggregate sentence 1) - 65. Using a false document 10 years 54 months (aggregate sentence 1) - 66. Theft 10 years 36 months (aggregate sentence 2) - 67. Theft 10 years 54 months (aggregate sentence 1) - 68. Theft 10 years 36 months (aggregate sentence 2) - 69. Theft 10 years 36 months (aggregate sentence 2) - 70. Handling stolen goods (contrary to s 88 of the Crimes Act1958)[40] 10 years 1 year 2 months 71. Making a false document 10 years 54 months (aggregate sentence 1) - 74. Obtaining property by deception 10 years 54 months (aggregate sentence 1) - 75. Attempting to obtain property by deception 5 years 54 months (aggregate sentence 1) - 76. Theft 10 years 54 months (aggregate sentence 1) - 77. Making a false document 10 years 54 months (aggregate sentence 1) - 79. Theft 10 years 54 months (aggregate sentence 1) - 80. Making a false document 10 years 54 months (aggregate sentence 1) - 82. Making a false document 10 years 54 months (aggregate sentence 1) - 84. Theft 10 years 54 months (aggregate sentence 1) -
85.
Making a false document 10 years 54 months (aggregate sentence 1) - 88. Possess drug of dependence (contrary to s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981)[41] 30 penalty units or 1 year 1 month - 89. Possession of identification information (contrary to s192C of the Crimes Act 1958) 3 years 54 months (aggregate sentence 1) - Summary Offences Summary charge 5 Unlicensed driving (contrary to s 18(1)(a) of the Road Safety Act 1986) 3 months or 25 penalty units 1 month - Summary charge 15 Forging a registration label (contrary to s 72(1)(a) of the Road Safety Act 1986) 2 months or 10 penalty units Convicted & fined $250 - Summary charge 16 Commit indictable offence on bail (contrary to s 30B of the Bail Act1977)[42] 3 months or 30 penalty units 1 month - Summary charge 103 Possession of ammunition (contrary to s 124(1) of the Firearms Act 1996) 40 penalty units Convicted & fined $200 - Summary charge 104 Deal with property suspected of being proceeds of crime (contrary to s 195 of the Crimes Act 1958) 2 years 1 month - Summary charge 122 Possession of a prohibited weapon (cross bow) (contrary to s 5AA of the Control of Weapons Act1990) 240 penalty units or 2 years Convicted & fined $150 - Total effective sentence: 8 years’ imprisonment Non-parole period: 5 years and 6 months Pre-sentence detention declaration: 737 days Section 6AAA statement: 10 years and 6 months’ imprisonment with a non-parole period of 8 years and 6 months. Other relevant orders:
Disposal Order.
Disqualified from obtaining a licence or permit for 3 years from 15 February 2019.
[38]Charge 4 — Negligently dealing with the proceeds of crime — was a rolled-up charge.
[39]Charge 20 — Prohibited person possess a firearm — was a rolled-up charge.
[40]Charge 70 — Handling stolen goods — was a rolled-up charge.
[41]Charge 88 — Possess drug of dependence — was a rolled-up charge.
[42]This charge involved 69 individual breaches.
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