Gladigau v The Queen - [2015] VSCA 204

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0034

CHRISTOPHER JOHN GLADIGAU

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:

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.

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

The applicant now seeks leave to appeal.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gladigau v The Queen

Details

AGLC: Gladigau v The Queen [2015] VSCA 204
Case: [2015] VSCA 204
Decision Date: 3 August 2015

CaseChat Overview and Summary

The case of Gladigau v The Queen involved the defendant, Gladigau, who was convicted for multiple theft, burglary, and drug-related offences. The central dispute revolved around the sentence imposed by the court and whether an error in the estimation of the value of stolen property affected the fairness or appropriateness of the sentence. The High Court of Australia was tasked with determining the legal implications of this error and whether it warranted any correction or reconsideration of the sentence.

The primary legal issue before the court was whether the factual error in the estimation of the value of stolen property necessitated a correction of the sentence. The court was required to examine the extent to which this error impacted the sentence, particularly considering that the only available penalty for the offences was imprisonment. Additionally, the court needed to assess if any correction of the error would alter the overall effectiveness of the sentence or if the error was immaterial for the purposes of sentencing.

In its judgment, the court held that while the error in the estimation of the value of stolen property was indeed a factual mistake, it was immaterial in the context of the sentence imposed. The court emphasised that the only available penalty for the offences committed was imprisonment. Consequently, any correction of the factual error would not have altered the overall effectiveness of the sentence. The court concluded that there was no point of principle that required the correction of the error, and the total effective sentence remained unchanged. Therefore, the error was deemed inconsequential to the fairness or appropriateness of the sentence imposed.

Orders