Gladigau v The Queen

[2015] VSCA 204

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0034

CHRISTOPHER JOHN GLADIGAU

v

THE QUEEN

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JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 2015
DATE OF JUDGMENT:	3 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 204
JUDGMENT APPEALED FROM:	DPP v Gladigau (Unreported, County Court of Victoria, Judge Mullaly, 21 February 2014)

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CRIME – Sentence – Multiple theft, burglary and drug offences – Factual error in estimate of value of property stolen – Error immaterial – Sentence of imprisonment where only financial penalty available – Error corrected – Total effective sentence unchanged – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Ms E M van Krimpen	Victorian Legal Aid
For the Crown	Ms F Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:

1. On 13 February 2014 the applicant pleaded guilty to 10 burglary offences, 10 theft offences, three offences of obtaining property by deception, four uplifted summary offences of trespass, an offence of possession of a drug of dependence, and an uplifted summary offence of use of a drug of dependence. 

1. On 21 February 2014 a judge in the County Court sentenced him as follows:

Charge on Indictment	Offence	Maximum		Sentence	Cumulation
1, 3, 5, 8, 10, 12, 14, 17, 19 & 21	Burglary [s 76(1) of the Crimes Act 1958]	10 years’ imprisonment		5 years (aggregate sentence)	Base
2, 4, 6, 9, 11, 13, 15, 18, 20 & 22	Theft [s 74(1) of the Crimes Act 1958]	10 years’ imprisonment
7, 16 & 23	Obtaining property by deception [s 81(1) of the Crimes Act 1958]	10 years’ imprisonment
24	Possess drug of dependence (trafficking purpose excluded) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981]	5 penalty units		7 days	-
Uplifted summary charges 41, 42, 43 & 50 42, 43, 50	Wilfully trespass in any place [s 9(1)(e) Summary Offences Act 1966]	6 months’ imprisonment or 25 penalty units		4 months (aggregate sentence)	-
Uplifted summary charge 44	Use a drug of dependence (heroin) [s 75 Drugs, Poisons and Controlled Substances Act 1981]	1 year imprisonment or 30 penalty units or both 1981]		Proven and dismissed	-
Total Effective Sentence:			5 years’ imprisonment
Non-Parole Period:			3 years’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			9 days
6AAA Statement: Total effective sentence 6 years 6 months’ imprisonment and non-parole period of4 years 6 months imprisonment
Other relevant orders: Compensation orders

1. The applicant now seeks leave to appeal.

1. The burglary and theft offences were committed in Bendigo, Ballarat and Bacchus Marsh between 5 March and 15 April 2013.  The applicant forced entry to private houses, often breaking windows in order to do so, ransacked the houses or portions of the houses, and stole personal items such as jewellery and electronic equipment.  The offences of obtaining property by deception concerned the sale of jewellery and a china jug which he had stolen.  The trespass offences concerned three occasions when he knocked on the front door or rang the doorbell of private houses on a pretext but where the homeowner was home, and one occasion upon which the homeowner saw the applicant in her backyard.  The offence of use of a drug of dependence related to heroin which the applicant admitted having taken when randomly intercepted by police on 4 April 2013.  The offence of possession of a drug of dependence related to a small quantity of cannabis found when a search warrant was executed on the property at which he was living on 22 April 2013.

1. At the time of sentence the applicant was 47 years old. 

Sentencing reasons

1. The sentencing judge observed that the applicant had spent many years of his adult life in jail and that he had an extensive prior criminal history with many prior convictions for burglary and theft.  The judge observed that the applicant’s ‘regular resort to crime’ was a consequence of his ‘lifelong addition to heroin’. 

1. The sentencing judge said that house burglary constitutes a serious invasion of a victim’s security.  He referred to and quoted from the victim impact statements which had been tendered on the plea. 

1. The sentencing judge referred to the fact that many items of sentimental value had been stolen.  He said that the monetary value of what had been stolen was conservatively estimated at just under $100,000.  He then said:

This sort of offending has a corrosive effect on our community.  Ordinary people become fearful that their homes, and even themselves, are not safe.  The community is heartily sick of house burglaries and the fact that illegal drug use [is] behind it only makes the impact on the victims all the more frustrating.

1. The offences had been committed whilst the applicant was on parole.  His parole had been cancelled on 1 May 2013 and the unexpired portion of the sentence which he was then required to serve was 1 year 9 months and 26 days.  At the time of sentence, his pre-sentence detention was declared to be 9 days.  The applicant had been in custody since 22 April 2013.  The time he had spent in custody prior to sentence was, with the exception of the first 9 days, part of the unexpired term of the sentence upon which he had been paroled.  The sentencing judge observed that there were no exceptional circumstances and that accordingly the sentence to be imposed for these offences would be served cumulatively on the previous sentence.

1. The sentencing judge referred to the fact that the applicant had given evidence on the plea and had said that he had read victim impact statements for the first time in this proceeding and had never before had insight into the impact of home burglaries on victims.  The sentencing judge accepted that he did now have greater insight, he said that that would be an important factor in whether he was rehabilitated and was evidence of genuine remorse. 

1. The sentencing judge referred to the need to take into account the sentence in relation to which parole had been cancelled when considering totality.  He referred to the importance of both specific and general deterrence in this case.  He also referred to the early plea of guilty which the sentencing judge said had not only saved resources but also expressed the applicant’s remorse and acceptance of responsibility.  The sentencing judge observed that despite the applicant’s history his prospects of rehabilitation were ‘not forlorn’.  The sentencing judge referred to support which the applicant still had from his parents, and he referred to the applicant’s partner, with whom he has a child, who also ‘remains supportive’.

Proposed grounds of appeal

1. The applicant’s proposed grounds of appeal are the following:

1.There is an error in the aggregate sentence first imposed in that the Applicant was sentenced on the basis that the estimated monetary value of the items stolen was $96,914, when in fact that estimated monetary value ought to have been $64,744.

2.The learned sentencing judge erred by imposing a sentence on charge 24 (7 days imprisonment) which exceeded the maximum penalty available for that offence (5 penalty units).

1. The respondent conceded that each of those errors had in fact been made.  The error in relation to the estimated monetary value of the property stolen was made because the prosecution had told the judge the incorrect figure and counsel for the applicant, at the plea, did not correct it.

Submissions

1. On behalf of the applicant it was submitted that the error of $32,170 in the estimate of the value of the property stolen was ‘not insignificant’ and that it had been relevant to the sentencing judge’s assessment of the applicant’s ‘overall criminality’.  It was submitted that a lower aggregate sentence might well have been imposed had the judge known that the total estimate was $64,744. 

1. In relation to the error concerning the sentence imposed for the offence of possession of a drug of dependence, the applicant referred to the relevant provision, being s 73(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981, which provides for a maximum penalty of 5 penalty units, and referred to the fact that the prosecutor had advised the sentencing judge of that maximum during the plea hearing.  Counsel for the applicant conceded that that matter could be corrected even if leave to appeal was refused.

1. The respondent submitted that pursuant to s 280 of the Criminal Procedure Act 2009 leave to appeal should be refused, notwithstanding the acknowledged error in the estimate of value, because it was submitted that the error was not ‘material’[1] and because there is no reasonable prospect of a reduction in the total effective sentence (s 280(1)(b)).  The respondent submitted that in refusing leave this Court could amend the erroneous sentence imposed on the count of possession of a drug of dependence (s 280(3)). 

   [1]R v Fox [2003] VSCA 138 [4].

Should leave be granted?

1. The sentencing judge’s reasons, if anything, understate the applicant’s relevant criminal history.  The applicant has been dealt with many times for driving offences and has received terms of imprisonment for those offences.  But the number of times upon which the applicant has been before Courts and been convicted of offences involving burglary and theft (or equivalent offences in other States) is quite extraordinary.  Without double counting for appearances referrable to appeals and hearings concerning breaches of non-custodial disposition, I calculate 18 such appearances.  On the hearing before us, counsel for the respondent told the Court that the applicant has at least 40 prior convictions for burglary or like offences.  He has, in the past, received sentences of imprisonment for these offences.  But he has also received a suspended sentence, good behaviour bonds, probation, an order for community service, a custody and treatment order, and an intensive corrections order.  The last of these appearances, at the Ballarat Magistrates’ Court and subsequently on appeal at the Ballarat County Court, resulted in a sentence of 3 years 6 months’ imprisonment with a non-parole period of 2 years for 7 burglaries, 7 thefts and 2 firearm offences. 

1. Given the applicant’s history, the view the sentencing judge took as to his remorse and his prospects of rehabilitation seems to me to have been a generous one from the applicant’s point of view.

1. The error in relation to the estimated value of the property stolen was, in my view, not material in the relevant sense.  I do not consider that the sentencing judge

treated the value of the property as being at all significant.  The matter which was significant was the 10 home invasions which constituted the 10 offences of burglary and the 10 offences of theft.  I do not consider that the sentencing judge might have passed a different sentence if the error had not been made.  It seems to me that this emerges clearly from his sentencing reasons and, in particular, from the passage which followed his reference to the estimated value and which I quoted earlier.

1. In any event, in my view, the sentence imposed was a merciful one.  Given the applicant’s prior history as I have outlined it, there is no reasonable prospect that the total effective sentence would be reduced, despite the error made in relation to the estimated value of the property stolen, if leave were granted. 

1. Accordingly, given that the error made as to the sentence on the drug possession charge can be corrected without granting leave, in my view leave should be refused. 

1. The sentence imposed on the offence of possession of a drug of dependence should be corrected.  I would set aside the sentence of 7 days’ imprisonment and order instead that the applicant is convicted and discharged.

BEACH JA:

1. I agree.

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