DPP v Fabriczy

[2010] VSCA 334

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS	S APCR 2010 0149
	Appellant
v
STEVEN FABRICZY	Respondent

---

JUDGES	MAXWELL P, NEAVE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 October 2010
DATE OF JUDGMENT	9 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 334
JUDGMENT APPEALED FROM	[2010] VCC 0341 (Judge C O’Neill)

---

CRIMINAL LAW – Crown appeal – Sentencing – Conspiracy to handle stolen goods – Conspiracy to commit robbery – Crimes Act 1958 (Vic) s 321C(1)(c) – Whether general rule that sentence for conspiracy should be less than sentence for substantive offence – Nature of crime of conspiracy – Substantive offence not committed – Factors relevant to sentence – Sentences manifestly inadequate – Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr R Richter QC with Ms G Morgan (Sol)	Robert Stary Lawyers

MAXWELL P

NEAVE JA
REDLICH JA:

Summary

1. This is an appeal by the Director of Public Prosecutions against sentences imposed for conspiracy.  In addition to the conventional ground of a Director’s appeal, that the sentences were manifestly inadequate, the Director contends that the sentencing judge misdirected himself by holding that, as a general rule, the sentence imposed for an offence of conspiracy to commit an offence should be less than the sentence which would have been imposed had the planned offence been committed.

1. The specific ground raises an important issue of principle.  For reasons which follow, we have concluded that his Honour did misdirect himself.  There is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted.  The conspiracy offence is directed at a different mischief – the making of an agreement to act unlawfully – and the sentencing court must assess the degree of criminality, and the moral culpability of the individual conspirators, accordingly.  The Court must take into account not only what was done by the particular defendant but also the scope and duration of the conspiracy as a whole and everything done in furtherance of it.[1] 

   [1]See [17] below.

1. It was conceded by senior counsel for the respondent that, were the Court to uphold the specific ground, the ground of manifest inadequacy must inevitably succeed.  This concession was properly made.  We will allow the Director’s appeal and resentence the respondent.

The circumstances of the offending

1. The respondent pleaded guilty in the County Court to one count of conspiracy to handle stolen goods (count 1) and one count of conspiracy to commit robbery (count 2).  He was sentenced to one month’s imprisonment on count 1 and two years’ imprisonment on count 2, the sentences to be served concurrently.  Twelve months of the term of two years’ imprisonment was suspended for a period of two years.

1. The facts are not in dispute, and were conveniently summarised by the sentencing judge as follows:[2]

   [2]DPP v Fabriczy (Unreported,…