DPP v Sarkis
[2006] VSCA 303
•21 December 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DIRECTOR OF PUBLIC PROSECUTIONS | No. 254 of 2006 |
| v. | |
| FADI SARKIS |
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JUDGES: | NETTLE and NEAVE, JJA and KING, AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 November 2006 | |
DATE OF JUDGMENT: | 21 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 303 | |
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CRIMINAL LAW – Sentencing – Crown appeal – Handling stolen goods and money laundering – Total effective sentence of three years’ imprisonment – Sentence imposed while respondent serving a sentence of 28 months’ imprisonment with a non-parole period of 17 months in respect of other offences – Sentencing judge imposing a new non-parole period of 18 months in respect of all sentences which the respondent was to serve or complete – Consequent increase in non-parole period of only five months – Whether judge erred in cumulation or setting of non-parole period – Whether sentence or non-parole period manifestly inadequate – Sentencing Act 1991, s.14 – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle, QC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr M J Croucher | Chiodo & Madafferi Solicitors |
NETTLE, JA:
This is an appeal by the Director of Public Prosecutions against a total effective sentence of three years’ imprisonment imposed on the respondent in the County Court at Melbourne following trial and conviction of one count of dishonestly handling stolen tobacco (Count 1) and four counts of possessing money being the proceeds of crime, namely $149,020 (Count 2); $ 60,000 (Count 3); $10,000 (Count 4); and $27,900 (Count 5).
In order to deal with the Director’s contention, it is necessary to state some of the history of the matter and of matters which preceded it.
On 13 September 2003, two shipping containers carrying a large amount of raw tobacco were stolen from a holding yard owned by Patrick Port Services in the Melbourne dock area. A forklift located at the shipping yard was used to load the boxes of raw tobacco onto two prime movers and trailers taken from the same location.
As a result of information received, police obtained a search warrant for a warehouse at 11 Darbyshire Street, Williamstown and on Saturday 20 September 2003, they entered the premises and found the respondent and another man and 24 boxes of raw tobacco matching the description of part of the stolen tobacco (Count 1). The respondent was searched and found to be carrying $24,900 in cash in one pocket and $3,000 in another (Count 5). A further search of the premises revealed two plastic bags under a sink in the kitchen area, one containing a shoebox with cash in bundles totalling $149,200 (Count 2) and the other containing $60,000 in cash (Count 3). A further $10,000 in cash was found hidden under some bags of barbecue heat beads on the warehouse floor (Count 4).
While the search was being conducted, another two men arrived by car. One was Nasser El Haouli. He was the lessee of the factory and he was charged with the respondent. The other man was allowed to leave.
The stolen boxes of tobacco belonged to Phillip Morris. The missing tobacco was valued at $141,000. The 24 boxes recovered at the factory were valued at $22,070.
The respondent was born on 7 June 1964, and at the date of the offences (20 September 2003) was aged 39 years. He is now 42 years of age. Nasser El Haouli, who was born on 15 September 1957 and at the date of the offences was aged 46 years.
Following a committal hearing before the Magistrates Court at Melbourne, on 25 May 2005, the respondent and the alleged co-offender Nasser El Haouli were committed to stand trial on all charges.
On 20 July 2005, the respondent appeared at the Magistrates’ Court at Melbourne with co-offenders, Ha Tran and Gus Elhariry on multiple charges of trafficking in a drug of dependence, namely, cocaine, and after pleading guilty they were committed to the County Court for the hearing of their pleas.
The respondent and the co-offenders Ha Tran and Gus Elhariry later pleaded guilty before his Honour Judge Gullaci to one count of trafficking in cocaine between 10 May 2004 and 15 July 2004, and on 15 March 2006 his Honour sentenced the respondent in respect of the offence to a term of imprisonment of 28 months with a non-parole period of 17 months.
On 19 June 2006 the respondent and Nasser El Haouli were arraigned before his Honour Judge Burke and pleaded not guilty to the subject offences. At the conclusion of the trial, the jury found the respondent guilty of all counts but found Nasser El Haouli not guilty of any count.
During the plea in mitigation of penalty which followed, the respondent admitted to four previous court appearances, two previous findings of guilt and four prior convictions for dishonesty and firearm offences. It was also established that, at the time of these offences, the respondent was serving a three-year good behaviour bond for a conviction in April 2002 of attempting to pervert the course of justice. That latter was said to have involved making a false declaration in relation to a lost wallet.
After reserving to consider the matter, on 5 July 2006 his Honour sentenced the respondent as follows: on Count 1 to a term of imprisonment of two years; on Count 2, to a term of imprisonment of two years; on Count 3, to a term of imprisonment of 18 months; on Count 4, to a term of imprisonment of 12 months; and on Count 5, to a term of imprisonment of 18 months. The judge further ordered that three months of the sentences imposed on each of Counts 2 to 5 be served cumulatively on the sentence imposed on Count 1, and on each other, thereby making a total effective sentence of three years, and that 12 months of the sentence be served cumulatively with the sentence of 28 months’ imprisonment imposed by Judge Gullaci on 15 March 2006. Pursuant to s.14 of the Sentencing Act 1991, his Honour fixed a new non-parole period of 18 months’ imprisonment in respect of all sentences remaining to be served (which had the effect of increasing the minimum term to be served by five months).
Director’s grounds of appeal
The Director contends that the individual sentences and total effective sentence were manifestly inadequate and that the extent to which the sentence was cumulated on the sentence imposed by Judge Gullaci was plainly below what was required. It is further contended that the non-parole period was inadequate to reflect the gravity of the respondent’s offending and, in particular, that an effective increase in the minimum term of imprisonment by only five months substantially devalues the subject group of offences.
Sentences not manifestly inadequate
It is unnecessary to re-state at length the principles which apply to Crown appeals against sentence. Plainly, such an appeal cannot succeed unless the sentence the subject of appeal is manifestly inadequate and to such an extent as to be clear and egregious. In effect it must reveal such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle or be so disproportionate to the seriousness of the crime as to shock the public conscience. In my view that test is not satisfied in this case.
For what it is worth, I am inclined to think that the sentence of only two years’ imprisonment imposed on Count 2 was lenient. Given that the offence involved $149,000, and bearing in mind the overall circumstances of the matter, a sentence of only two years was surely towards the bottom end of the range. The maximum penalty for such an offence is 20 years’ imprisonment and, while it may be that offences of money laundering frequently involve sums of a larger order, this offence was large enough to warrant a good deal more than the minimum.
That said, however, it does not strike me that a sentence of two years was manifestly inadequate to such an extent as to be clear and egregious. One or two years either way is not enough in the circumstances of this case to make for that sort of disparity.
By comparison the sentence of two years’ imprisonment imposed on Count 1 was plainly within the range, and although comparisons with other cases are usually of limited utility, I note that the sentence accords with some of those which were imposed in not dissimilar circumstances in R v Gluyas[1] and R v Sumner.[2] I add that, contrary to the Director’s submission, it is not to the point that the 24 boxes of stolen tobacco over which the respondent was charged were part of the larger stolen consignment valued at more than $141,000. The fact is that the respondent was not convicted or even charged in relation to the remainder of that consignment.
[1]Court of Criminal Appeal, Young CJ and Crockett and Nathan JJ, unreported 20.11.89, BC 8900482.
[2](1985) 19 A Crim R 210.
The rest of the individual sentences appear to be unremarkable. Perhaps, the sentence imposed on Count 3 was lenient. But if so, not to such an extent as to warrant appellate intervention.
Total effective sentence
I am not persuaded that the degree of cumulation was manifestly too small. Evidently, the individual offences were part of a single criminal enterprise, and prima facie that implied that a significant degree of concurrency was in order. It is apparent, however, that the judge allowed for a significant degree of cumulation in order to reflect the addition to total criminality of the individual sentences. I reject the Director’s contention that the total effective sentence was manifestly inadequate.
Orders for cumulation
That leads to the question of whether the judge erred in ordering that only 12 months of the total effective sentence be cumulated on the sentence imposed by Judge Gullaci.
Bearing in mind the effect of s.16 of the Sentencing Act 1991, I do not see that there was any error. As Callaway, JA explained in R v Mantini,[3] s.16(1) creates a statutory presumption or prima facie rule that every term of imprisonment must be served concurrently with any uncompleted sentence, and a judge must have good reason to direct either total or partial cumulation instead. That prima facie rule leaves the judge at large with a wide sentencing discretion in order to achieve an appropriate total sentence in accordance with the principles essayed by Ormiston, JA in R v Lomax[4] and Director of Public Prosecutions v Grabovac.[5]
[3][1998] 3 VR 340 at 346-349.
[4][1998] 1 VR 551.
[5][1998] 1 VR 664.
Certainly, the subject offences represented an enterprise which was separate and apart from the offences for which the respondent was sentenced by Judge Gullaci. Other things being equal that implied a need for a degree of cumulation. But, as the judge took care to explain in his sentencing remarks:
“…The principle of totality is [also] relevant and important…
I must attempt to impose a fair and proportionate sentence having regard to the total criminality of your offending leading to both sentences.
Also, to some extent relevant in a way favourable to you, is the evidence of your movement towards rehabilitation since December 2004. That has, I accept, continued during your present sentence. You keep close and constant contact with your wife from Loddon Prison and you family is strongly supportive of you. Your wife and one of your sons were present in court during the plea hearing and I note that other members of your family are present today. “
Allowing for the breadth of the sentencing discretion under s.16(1), and the mitigatory considerations which, as the judge observed, he was bound to take into account, I consider that the extent of cumulation was within bounds.
Finally, there is the question of the new single non-parole period. In my view the answer to that flows directly from the matters already discussed. If, as I think to be the case, it was within the range to cumulate only 12 months of the total effective sentence, then it was within range to impose a new single non-parole period which extended the minimum custodial portion of all sentences to be served by only five months. I allow that it may seem a very small extra period of incarceration for the offences for which the respondent fell to be sentenced. But if so, it is because of the effect of s.16(1) and not because of any error on the part of the judge.
Conclusion
I would dismiss the appeal.
NEAVE, J.A.:
I have had the advantage of reading in draft the reasons of Nettle, J.A. For the reasons that his Honour gives, I agree that the appeal should be dismissed.
KING, AJA:
I agree with the reasons advanced by Nettle, JA.
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