DPP v Jovicic

[2001] VSCA 43

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 371 of 2000
No. 372 of 2000

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

ROBERT JOVICIC and

DRAGAN JOVICIC

---

JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	BALLARAT
DATE OF HEARING:	20 March 2001
DATE OF JUDGMENT:	22 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 43

---

Criminal law – Sentence – Burglary – Crown appeal – Principles applicable – Offenders with long criminal histories pleading guilty to four burglaries – Principal offender sentenced to 5 years for multiple offences – Parity – General and specific deterrence – Rehabilitation – Necessity for cumulation – Total effective sentences of 2 years’ imprisonment manifestly inadequate – Appeal allowed – Respondents resentenced.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Respondent Robert Jovicic For the Respondent Dragan Jovicic	Mr. P.F. Tehan, Q.C. Mr. O.P. Holdenson, Q.C.	Clarebrough Pica Clarebrough Pica

WINNEKE, P.: 

1. I invite Charles, J.A. to deliver the first judgment in this matter.

CHARLES, J.A.: 

1. On 25 September 2000, the respondents, Dragan Jovicic, who was born on 19 March 1963, and Robert Jovicic, who was born on 4 December 1966, were presented at the County Court at Melbourne, together with George Bond, Marco Scalpelli and John Veglianti, and pleaded guilty to a presentment containing in relation to each respondent four counts of burglary with intent to steal and four separate counts of theft, the offences of the respondents being quite unrelated.  Dragan Jovecic was also charged with three other offences, one of which was that he had dishonestly handled stolen goods.  George Bond was presented on one count of burglary with intent to steal and one count of theft, John Veglianti on one count of conspiracy to handle stolen goods, one count of cultivating a narcotic plant and one count of possessing cannabis L, and Marco Scalpelli on one count of conspiracy to handle stolen goods. 

1. Dragan Jovicic had 108 prior convictions from 15 court appearances between 1 May 1980 and 12 June 1998.  Most of these convictions were for offences of dishonesty, including burglary, theft, handling stolen goods and obtaining property by deception.  Robert Jovicic had 158 previous offences or convictions from 10 court appearances between 4 June 1984 and 31 May 1995.  Most of these were for offences of dishonesty, including burglary, theft and handling stolen goods.  Dragan Jovicic's prior convictions included 32 prior convictions for burglary, 22 convictions for theft and 23 counts of obtaining property by deception.  Robert Jovicic had 52 prior offences of burglary, 63 of theft, and other convictions

for attempted burglary, receiving, going equipped to steal and possession of property suspected of being stolen or unlawfully obtained.

1. After a plea in mitigation, in which evidence was given on behalf of Dragan Jovicic by his wife Melissa, Mrs Mary Harris and the Reverend David Boehm, and various supporting references were tendered, and three letters were tendered in support of Robert Jovicic, the judge sentenced Dragan Jovicic on each count of burglary with intent to steal to 15 months' imprisonment and on each count of theft to 9 months' imprisonment.  On two of the three additional charges in relation to Dragan Jovicic he was fined $250 and on the further charge of handling stolen goods he was sentenced to 6 months' imprisonment.  All the sentences of imprisonment were to be served concurrently, save that the sentence on the first count of theft of 9 months' imprisonment was to be served cumulatively upon the first count of burglary, resulting in a total effective sentence of two years' imprisonment.  The judge fixed a non-parole period of 9 months.  Similarly, Robert Jovicic was sentenced on each count of burglary with intent to steal to 15 months' imprisonment and on each count of theft to 9 months' imprisonment, the sentence on the first count of theft being made cumulative upon the sentence imposed on the first count of burglary, the total effective sentence therefore being 2 years' imprisonment.  Again, the judge fixed a non-parole period of 9 months.

1. The Director of Public Prosecutions now appeals, pursuant to s.567A of the Crimes Act 1958, in respect of these sentences, on the grounds in each case that the sentence imposed was manifestly inadequate, as to the total effective sentence, the sentence in respect of each count, and the non-parole period fixed, and that the sentences failed adequately to reflect the nature and gravity of the offences, the respondent's culpability and degree of responsibility, general and specific deterrence, and the respondent's previous convictions, and that the judge gave too much weight to factors going to mitigation. It is also specifically submitted that the judge failed to cumulate any of the sentences imposed.

1. The following statement of the facts giving rise to these offences is based upon a typewritten summary, which was agreed and made available to the sentencing judge.  The respondents were two of eighteen persons who had been charged and sentenced as a result of a police surveillance operation centred upon the activities of one Frank Coppola, as the handler of stolen goods supplied to him by a large number of professional burglars.  Coppola ran a well-established and lucrative business of receiving stolen property and on-selling it.  He had been heard to claim that he had been offered $120,000 for what he chose to call the "good will" of his business, and that he made $700 to $800 per day in it.  When the police executed a search warrant on Coppola's premises on 13 October 1998, stolen property was located which was identified as being the proceeds of 32 house burglaries dating as far back as October 1995, and theft from motor vehicles dating back as far as June 1998.  The total value of the stolen goods found on Coppola’s premises, according to the judge who sentenced him, was approximately $270,000.

1. It was clear from the police surveillance operation that both Robert Jovicic and Dragan Jovicic had developed a professional relationship with Coppola, and that they relied on him for the most part in disposing of the goods they had stolen.  The method of both respondents, once they had committed the burglaries on the presentment, was to visit Coppola at his house, driving their vehicles down his driveway out of view of the street, and unloading the stolen property into his garage.  The goods were then tested by Coppola and prices discussed.  Both respondents focussed their efforts on electrical goods, including television sets and video cassette recorders, CD and DVD players, as well as jewellery, particularly gold and diamonds, cash, cameras, computers and alcohol.  Both respondents knew that Coppola could on-sell these items, knew some of his customers and knew the price they were likely to pay for stolen items.  They had a good knowledge of the value of the goods they had stolen and would argue their value with Coppola. 

1. All of this information was obtained by the police through a listening device which had been placed in Coppola's garage from 25 September to 12 October 1998.  On 13 October 1998, the police executed search warrants on premises connected with Coppola and various of his associates.  Some of the stolen property recovered by police was property stolen by Dragan Jovicic and Robert Jovicic. 

1. In the case of Dragan Jovicic, the evidence was that he was a regular visitor to Coppola's garage.  On 25 September 1998 he told Coppola that he would be doing some work over the weekend, this being a reference to committing a burglary.  The next day he entered a unit in Weatherby Road, Doncaster by forcing the front window and stole a Panasonic video cassette recorder, a General Electric video cassette recorder, two pairs of earrings, four necklaces, a gold watch, a Canon camera, gold and jade pendants, a gold bracelet, six gold rings and a variety of other items.  The total value of these items was $5,880.  On the same day he went to Coppola's premises and was overheard on the listening device discussing some of these stolen items with Coppola.  The first two counts of burglary and theft related to this occasion.

1. The 3rd and 4th counts related to a burglary and theft at a block of flats in Burwood East, where Dragan Jovicic obtained entry by forcing the front door and stole items having a total value of $6,280.  The 5th and 6th counts related to a burglary and theft carried out in Chadstone, where the items stolen had a total value of $8,000.  The 7th and 8th counts related to a burglary and theft at a block of flats in Malvern East, where the items stolen included a laptop computer and accessories.  Dragan Jovicic was under police surveillance on the fourth of these occasions and was intercepted by police when leaving the rear of the flats in question.  He was taken to his home, where a search warrant was executed and various goods suspected of being stolen were seized.

1. The first two charges relating to Robert Jovicic related to his breaking into premises in Blackburn North on 6 September 1998.  He parked his vehicle in the driveway of the premises for ease of loading stolen goods into it.  The goods taken included electrical goods, jewellery, alcohol, a Sony television, a Rolex watch, a Guess watch, a Panasonic laser disc player, a laser disc, a Shinko digital disc player, a Sony video recorder, a camera and various other items.  The value of the stolen goods was said to be in excess of $10,000.  The 3rd and 4th counts concerned a burglary at North Box Hill, the goods there stolen having a value of $12,000.  The 5th and 6th counts related to a burglary committed in Blackburn South, where the value of the goods stolen was said to be $15,000.  The 7th and 8th counts related to a burglary in Glen Waverley, where the value of the goods stolen was said to be $22,939.

1. The sentencing judge, in the course of his reasons, made reference to Dragan Jovicic's prior convictions, which commenced in 1980, when he was convicted of nine charges of burglary and eight of theft.  Thereafter he had been convicted from time to time, in 1987 on charges of theft and burglary, in 1988 on two charges of burglary and of theft, in 1991 of 13 counts of burglary, in 1992 of three counts of burglary, and in 1995, 1996 and 1998 of further counts of burglary and theft.  In referring to the sentences, the judge noted that when in 1999 Dragan Jovicic had been sentenced to 18 months' imprisonment which had been wholly suspended, he breached the suspended sentence and the suspended sentences were reinstated and he was required to serve them.  He had been guilty of at least one further burglary in 2000, a second charge in that year remaining to be heard at the time of sentencing.

1. In relation to Robert Jovicic, the judge said that his convictions for burglary went back to 1985 and were followed by 12 convictions in 1986, nine in 1989, 27 convictions for burglary in 1991, and further convictions for burglary in 1992, 1993 and 1995.  His Honour was also told of a further collection of charges relating to five burglaries committed between 17 April and 12 November 1999, subsequently dealt with in the Ringwood Magistrates' Court on 1 February 2001. 

1. The judge, having dealt with the circumstances of the offences committed by each respondent and their prior criminal history, then turned to the nature of the offence of burglary.  His Honour said that burglary is a most serious offence and set out in some detail reasons why burglary is so regarded, including the destruction of the home owner's sense of security, the breaching of the sanctity of the owner's home, the loss and sorrow caused to each person from whom property is stolen, and the significance of the theft together with the sentimental value of many of the items which are removed.  I entirely agree with all his Honour's observations in this regard.  The judge then turned to factors relevant to the offenders.  His Honour observed that both of the respondents had not had an easy early life;  both had commenced offending in order to get money to pay for drugs, and the need for money to fund their drug habits had been a factor in their criminal activities.  However, in relation to Dragan Jovicic, his Honour said that these criminal activities had also become a source of income for him generally, and noted that the transcript of the conversations in Coppola's garage demonstrated that he had been engaged, as it were, professionally with Coppola.  His Honour then turned to the fact that Dragan Jovicic was now married, having first met his wife some two years and four months beforehand, presumably in June 1998.  He married his wife on 14 February 1999 and a son was born on 9 March 1999.  The judge heard evidence from Mrs Melissa Jovicic and, as I have said, from Mrs Harris and Mr Boehm.  The thrust of this evidence was that Dragan Jovicic's marriage and the birth of a son had given him a great incentive and motive to throw off his drug addiction and past criminal life.  He was said to have been on a methadone programme for two years before sentencing and, it was said, he had, in the four months before the plea was heard, become a committed Christian.  I observe that the last of the incidents of burglary for which he was then to be sentenced occurred on 12 March 1999, after the birth of his son, and that he had offended again in 2000.  His Honour said that he proposed to act on the basis that Dragan Jovicic was then genuinely attempting to change his life, a finding upon which this Court also should proceed.  His Honour said there was no evidence before him that Dragan Jovicic had been remorseful, as distinct from being anxious and determined to break his drug addiction cycle, and the respondent did not himself give evidence before the sentencing judge.  His Honour was plainly much influenced by what he regarded as Dragan Jovicic's genuine prospects of rehabilitation, although his Honour did not consider rehabilitation to be the paramount consideration in the sentence to be passed.  His Honour said that general deterrence and punishment were also important. 

1. In relation to Robert Jovicic, the judge said that he was not satisfied that the respondent was truly remorseful for what he had done, also being more concerned with his present plight and concentrating on maintaining the break he had achieved in his addiction to heroin.  In his case also, the judge did not accept that burglaries had been committed solely to fund his drug habit;  rather, they gave him "a way of getting a means to live".  Robert Jovicic had met his fiancee in 1993 and had maintained a relationship with her which was continuing at the time of the plea.  She was loyally supportive, both morally and financially.  No oral evidence was given on Robert Jovicic's behalf, but his Honour took the view that the respondent had taken very positive steps to rid himself of his drug addiction and was making what was described as a real and genuine attempt to beat his drug addiction.  Again, this Court should act on the same basis.  In his case also, however, this had not been sufficient to prevent him committing further offences, which remained to be dealt with before the Magistrates' Court.  Robert Jovicic had also attended Odyssey House in July 2000, but had been expelled from the in-patient programme there in September 2000, both because he had taken heroin with him into the premises and, being aware of a sexual liaison between in-patients which he was under an obligation to bring to the notice of those in charge of Odyssey House, had failed to do so.  His Honour said that while rehabilitation was plainly of importance in any sentence to be passed, general deterrence was very important, particularly since burglary was prevalent in the community.

1. For Robert Jovicic, his Honour also considered questions of parity in relation to the sentence passed on Bruce Edwin Featherstone by a different judge, Featherstone having been charged with one count of conspiracy to handle stolen goods and three counts of burglary and sentenced to one year and nine months' imprisonment, with a minimum of one year and three months to be served before becoming eligible for parole.  His Honour concluded, correctly in my view, that parity did not require him to pass a lighter sentence than the one Featherstone had received, being of the view that Robert Jovicic was a professional burglar and that his crimes were very serious in their own right.  Again, I entirely agree.  I shall return to the question of parity.

1. It is now submitted for the Director that the offences with which Robert Jovicic was involved occurred between 6 September and 9 October 1998 and involved the theft of property valued at $57,000.  In relation to Dragan Jovicic, the offences occurred between 26 September 1998 and 12 March 1999 and involved the theft of property valued at in excess of $20,000.  Burglary and theft each carry a maximum sentence of 10 years' imprisonment.  It is submitted that the sentences of 15 months and 9 months, accumulated to 24 months, for all incidents, and in relation to each respondent, are manifestly inadequate in that they do not adequately reflect the criminality of the conduct involved, having regard to the nature of the offending and the antecedents of each offender.  It is submitted that both respondents are professional burglars and career criminals, having regard to their records and the present offences, and that the professional nature of the enterprise and the dealings with Coppola were a particular matter of aggravation.  Further complaint is made that the inadequacy of the sentences also arises as a result of the failure of the judge to accumulate any of the sentences from the other incidents.  Mr Coghlan accepted that sentences for burglary and an associated theft could be concurrent, but argued that the course of criminal conduct for each respondent was such that it was appropriate to accumulate part of the sentences for each separate incident.  General and specific deterrence were plainly of great significance in relation to both respondents and, in summary, no regard appeared to have been paid to the fact that both respondents were professional burglars.  The sentences imposed were, it was submitted, quite inappropriate, and a non-parole period had been fixed in each case which would have been appropriate to a young offender with very substantial prospects of rehabilitation, rather than to offenders aged in their thirties with long criminal histories. 

1. Mr Tehan, for Robert Jovicic, submitted that the case was not in the rare category warranting appellate intervention on behalf of the Director.  He argued that no point of principle was involved and that the sentence imposed was not outside the range fairly open to the judge.  The sentencing reasons, it was submitted, had been carefully considered and the judge had taken all relevant matters into account.  His Honour had been entitled to impose a merciful sentence "to give Robert Jovicic a chance".  All the sentences were, he argued, within range, having regard to the fact that the judge had paid explicit regard to the seriousness of the offences, to the offender's prior history and the significance of general and specific deterrence.  It was submitted that the respondent's rehabilitation had been significant and matters personal to him, together with the forfeiture of his 1996 Toyota Seca motor car, entitled the judge to determine upon the sentences imposed.  We were told that Robert Jovicic has remained drug free in prison and that his drug treatment programme is continuing. 

1. In this Court, Mr Holdenson, for Dragan Jovicic, submitted that the case was one of intuitive synthesis in which a very wise and experienced judge had imposed sentence on reasons drafted with particular care and which were unchallengeable.  The process of rehabilitation had well and truly commenced, notwithstanding two burglaries of which his client had been guilty in April and May 2000.  He submitted that Dragan Jovicic was genuinely attempting to change his life, and that it was not open to this Court to set aside the judge's exercise of discretion.  Mr Holdenson submitted that his client had pleaded guilty at an early stage and that the plea was entitled, on a utilitarian basis, to significant weight since it avoided a lengthy trial.  After the offences had been committed, Dragan Jovicic had commenced a relationship with a woman and married her, and they had both become committed Christians.  Dragan Jovicic, the judge had accepted, was genuinely attempting to change his life, and there were good prospects of rehabilitation.  In short, it was argued, the person who fell to be sentenced was someone markedly different from the drug-addicted offender who had engaged in the criminal conduct.  He had, for the first time, presented for sentencing drug free, and even to this day had committed no breach in gaol of his drug treatment programme.  Taking totality into account, the case was not one falling within the class of case justifying the bringing of a Crown appeal.

1. I turn now to the question of parity, upon which counsel for both respondents relied.  There were 16 co-defendants who had been sentenced by various judges of the County Court for offences connected with the business of receiving and selling stolen goods conducted by Frank Coppola.  Seven of these - Steven McKay, Robert May, Roberto Scalpelli, Marco Scalpelli, Leon Wright, Raymond Bruce and David Hillsdon - had no prior convictions, and a further four - Gary Pinshon, Jeffrey Urquhart, Mark Hicks and John Veglianti - had minimal records, Hicks having three burglary convictions:  these eleven offenders may all be put to one side when parity is considered.  Of the remaining five, Bruce Featherstone had 23 prior convictions but only two for burglary and had no convictions between 1975 and 1998.  Emmanuel Veith admitted 98 offences from 13 court appearances between 1992 and 1998;  he, however, was aged only 18 when sentenced for these offences, most of his offending having been dealt with in the Children's Court without convictions being recorded;  Veith had only one prior conviction for burglary.  Graeme Gemmill had 22 prior convictions from four court appearances between 1979 and 1983, only one of which was for burglary, and had no conviction for an offence of dishonesty since 1980:  and these three also, in my view, may be put to one side.  George Bond had 94 prior convictions from 1972 to 1996, including 22 for burglary, his record being the closest to the antecedents of the present respondents.  He, however, was dealt with for only one count of burglary and one of theft, a single incident at Avondale Heights in October 1998, and the judge who later dealt with the present respondents sentenced Bond on each count to nine months' imprisonment to be served by way of intensive correction order, the sentences being concurrent. 

1. There remains Coppola himself.  Coppola and five of the co-offenders were presented on 6 December 1999 before another County Court judge, and Coppola pleaded guilty to 14 counts of conspiracy to handle stolen goods, an offence which carried a maximum penalty of 15 years' imprisonment.  The judge sentenced Coppola to five years' imprisonment and fixed a non-parole period of four years.  The material placed before the judge included Coppola's statements as to the value he placed on the "good will" of his "business" and his estimate of how much he made on a daily basis, together with the evidence to which I have already referred of the number of burglaries demonstrated by the stolen goods located at Coppola's premises and their value.  The judge said, when sentencing Coppola, that he was the organising hand and mind of the business, that it was "crime on a grand scale" and that his "activities facilitated and in that way encouraged the participation of crimes by robbers and receivers and repairers".  His Honour said he regarded Coppola's case as very serious of its kind, an observation with which there could be no possibility of disagreement.  In all these circumstances I am quite unable to understand how the sentencing judge came to impose upon Coppola a sentence which, with respect, could only be called derisory.  His Honour evidently placed weight on Coppola's plea of guilty and his lack of prior convictions.  While the judge was bound to take these matters into account, the case against Coppola was obviously of overwhelming strength, and in all the circumstances his lack of prior convictions was of minimal significance.  A sentence twice as severe as that actually imposed would not in my view have been beyond range.  When Coppola had the effrontery to seek leave to appeal against sentence, he was at once warned by the Court of its entitlement to increase his sentence and promptly abandoned his application.

1. It has been necessary to mention these matters in some detail because of their bearing upon the potential outcome of this appeal. 

1. As to the sentencing of the 15 other participants in the scheme of which Coppola was the organising hand and mind, I have already given reasons for putting them substantially to one side so far as arguments of parity are concerned, either because the antecedents of the offenders, or the number and nature of their offences, are not comparable with those of the respondents, as to which see Lowe v.The Queen[1].  I would merely observe that those co-offenders who had substantial prior convictions, Featherstone, Veith, Gemmill and Bond, each received sentences of surprising moderation.  I should also say that this Court, in Director of PublicProsecutions v. Bulfin[2], took the view that principles of parity should be given less emphasis, or should be more cautiously applied, when considering a Crown appeal against an allegedly inadequate sentence when all co-offenders have not been brought before the court[3]. 

   [1](1984) 154 C.L.R. 606, per Brennan, J. at 617-8 and per Dawson, J. at 623.

   [2][1998] 4 V.R. 114.

   [3]See especially at pp.136-140.

1. It is well-established that Director's appeals under s.567A of the Crimes Act 1958 should only be brought in rare and exceptional circumstances, one occasion for the bringing of a Crown appeal being when a sentence reveals such manifest inadequacy, or inconsistency in sentencing standards, as to constitute error in principle: Everett v. The Queen[4];  R. v. Clarke[5].  It is also important to bear in mind, in the consideration of a Crown appeal, what was said by King, C.J. in R. v.Osenkowski[6]:

"Prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."

[4](1994) 181 C.L.R. 295 at 300.

[5](1996) 2 V.R. 520 at 522.

[6](1982) 30 S.A.S.R. 212 at pp. 212-213.

1. With these wise words firmly in mind, I have nevertheless no doubt whatever that the present sentences are manifestly inadequate.  The respondents were both beyond question professional burglars and career criminals, as demonstrated by their prior criminal history, the facts of the offences for which they were sentenced and the contents of the conversations with Coppola overheard by use of the listening device.  Their pleas of guilty did not lead the judge to conclude that either respondent was remorseful to any degree, and both respondents were at first completely unco-operative with the police.  The prosecution case against each respondent was of great strength.  The large number of burglaries both had committed had wreaked havoc on many individual households and caused much distress and loss of security to the occupants, as victim impact statements clearly demonstrated.  General and specific deterrence were important in both cases, as also was the need for denunciation and punishment.  The community was entitled to some protection from the respondents in the sentences imposed and, I think, certainly did not receive it. 

1. In my view, the head sentence on each of the four burglary counts relating to each respondent was manifestly inadequate, as also was in each case the total effective sentence.  It may be that the principal factor in such inadequacy was the failure to cumulate any portion of the sentences for the three subsequent burglaries.  His Honour did not state in sentencing reasons why he made no such order for cumulation, the effect of his Honour's orders being that two years' imprisonment was imposed for each incident. 

1. There is, of course, no immutable principle of sentencing that a judge is bound in any case wholly or partially to cumulate the penalties for different offences.  As this Court said in R. v. O'Rourke[7], each case must depend on its own facts and -

"what is necessarily required in every case, even cases of sexual and violent offenders, is a sound discretionary judgment as to whether there should be cumulation and, if so, whether such cumulation should be in relation to some or all of the counts, and whether it should be in whole or in part". 

In the present case, the various incidents of burglary and theft were each "separate invasions of the community's right to peace and order", as Wells, J. put it in Attorney-General v. Tichy[8], and, as such, required a measure of cumulation.

[7][1997] 1 V.R. 246 at 253.

[8](1982) 30 S.A.S.R. 84 at 93.

1. In my view, an appropriate total effective sentence for both respondents would have been in the range of at least three times that actually imposed.  The very experienced sentencing judge was plainly influenced in each case by the view he took of the respondent's prospects of rehabilitation and reform, notwithstanding their lack of remorse.  I have already stated my view that this Court is bound by his Honour's findings.  But even if Dragan Jovicic had been given a great incentive to throw off his past criminal life and his drug addiction by his marriage and the birth of his son in March 1999, and by becoming a committed Christian in the months before the plea, he had continued to commit burglaries after the birth of his son in 1999 and 2000.  Even if Robert Jovicic had taken, as his Honour found, very positive steps to rid himself of his drug addiction in a real and genuine attempt to do so, all of the incidents for which he was then sentenced, and one of his prior convictions for burglary, occurred after he had met his fiancee in 1993, and he had committed five further burglaries between April and November 1999.  He had also been expelled from the in-patient programme at Odyssey House in September 2000.  In sentencing reasons, the judge said of each respondent that rehabilitation was not the paramount consideration in sentencing.  For myself, I would accept Mr Coghlan's submission that the matters in mitigation were not such as to lead appropriately to a head sentence of two years' imprisonment, or a non-parole period of nine months.

1. I would, therefore, allow the Director's appeal in each case.  In re-sentencing the respondents this Court will impose a sentence somewhat less than it considers should have been imposed at first instance, giving recognition to the element of double jeopardy.  But in the peculiar circumstances of the present case, the Court is in my view obliged to impose sentences below even what I would regard as the lower limit of the appropriate range, as a result of the sentence imposed on Coppola.  Coppola was, as I have said, sentenced to five years' imprisonment with a non-parole period of four years on 14 counts of the more serious offence of conspiracy to handle stolen goods and was the organising hand and mind of the business.  Notwithstanding what was said in Bulfin, this Court's sentencing discretion is in my view constrained by the inadequate sentence imposed on Coppola and by principles of parity. 

1. In the circumstances, I would propose the following substituted sentence.  I bear in mind the fact that an order for the forfeiture of Robert Jovicic's Toyota Seca has already been made.  I would leave standing each of the sentences imposed on the individual counts.  I would vary the orders for cumulation as follows.  In both cases I would order that the sentence imposed on count 2 be made cumulative upon the sentence imposed on count 1 and make further orders providing that six months of the sentences imposed on each of counts 3, 5 and 7 be cumulated upon counts 1 and 2 and upon each other.  The total effective sentence would in each case therefore become three-and-a-half years' imprisonment.  To encourage the respondents in their progress of rehabilitation, I would fix in each case a non-parole period of two years.

WINNEKE, P.: 

1. I agree, for the reasons given by Charles, J.A., that each appeal should be allowed.   I also agree in the orders for sentence which his Honour proposes. 

1. In my view it is a pity that this Court is restrained, for the reasons which his Honour has given, from imposing sentences which are appropriately proportionate to the gravity of the crimes committed by these two respondents, and sentences which adequately reflect the circumstances in which the crimes were committed and the antecedents of each offender.  The sentences imposed below, however, are manifestly inadequate, particularly the total effective sentence, and it is incumbent upon this Court to set them as right as they can be, for the purposes of maintaining appropriate sentencing standards in this State for crimes such as these, which strike directly at the heart of people's domestic security and their capacity to feel safe in their own homes.

BROOKING, J.A.: 

1. I agree with Charles, J.A. and with the additional remarks of the President.

(Discussion ensued.)

WINNEKE, P.: 

1. The formal orders of the Court in each of these appeals will be as follows.

In each case the appeal of the Director is allowed.

The sentences imposed upon the respondent Robert Jovicic are quashed and in lieu thereof we impose the following sentences:  on counts 1, 3, 5 and 7 - 15 months' imprisonment on each count;  on counts 2, 4, 6 and 8 - nine months' imprisonment on each count.  We direct that the nine months imposed on count 2 and six months of each of the sentences imposed on counts 3, 5 and 7 be cumulated upon each

other and upon the sentence imposed on count 1.  The total effective sentence will therefore be one of three years and six months' imprisonment.  We order that the respondent Robert Jovicic serve a minimum period of two years' imprisonment before becoming eligible for parole.  In his case we declare that 178 days has already been served pursuant to the sentences and we direct that the declaration and its details be entered in the records of the Court.

In the appeal involving Dragan Jovicic, we order that the sentences imposed on counts 1 to 8 inclusive be quashed and in lieu thereof we impose the following sentences:  on counts 1, 3, 5 and 7 - 15 months' imprisonment on each count;  on counts 2, 4, 6 and 8 - nine months' imprisonment on each count.  We direct that the nine months' imprisonment imposed on count 2 and six months of each of the sentences imposed on counts 3, 5 and 7 be cumulated upon each other and upon the sentence imposed on count 1.  The total effective sentence will therefore be one of three years and six months' imprisonment.  We order that the respondent Dragan Jovicic serve a minimum period of two years' imprisonment before becoming eligible for parole.  We declare that 178 days has been served pursuant to these sentences and we direct that the declaration and its details be entered in the records of the Court.

We direct that a certificate be given to each of the respondents pursuant to s.15 of the Appeal Costs Act and we will return to the respondents the original exhibits filed on this appeal.

MR COGHLAN: 

1. Your Honour, I think that in relation to the respondent Dragan Jovicic, count 11 was also before the Court.  If the words were simply added to the order that the sentences are otherwise confirmed that would seem to take care of that count.

WINNEKE, P.: 

1. That is why I said in his case that it was only the sentences on counts 1 to 8 inclusive.

MR COGHLAN: 

1. Yes, it is only for the benefit of those who might enquire hereafter, Your Honour.

WINNEKE, P.: 

1. The Court will order, in respect of the appeal involving Dragan Jovicic, that the sentences in his case are otherwise confirmed.