Helen Triandos v R No. 4230 Judgment No. SCCRM 93/324, 93/325 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4230

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - Sentence - accessory before the fact of shopbreaking with intent and assisting escape - sentence 10 months' imprisonment - woman aged 24 years with prior convictions for dishonesty - alleged disparity of sentence with principal offenders.

HRNG ADELAIDE, 19 October 1993 #DATE 19:10:1993
Counsel for appellant:     Ms C M Branson QC
   with Mr H I Patsouris
Solicitors for appellant:    Patsouris and Associates
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant was convicted by verdict of a jury in the District Court of the crime of being an accessory before the fact of a felony, namely shopbreaking with intent to steal, and also of assisting one of the offenders involved in the break to escape apprehension. 2. She was sentenced pursuant to s.18(a) of the Criminal Law ConsolidationAct to a single term of imprisonment for both offences. That term was fixed at 10 months. 3. She has appealed to this court upon the ground that that sentence was excessive. The argument placed before us by Ms Branson QC, who appeared for the appellant, was based upon an alleged disparity between the sentence imposed upon the appellant and the sentences imposed upon those who committed the offence of breaking with intent to steal. 4. The appellant was part of a team which was involved in a scheme to break into a Bi-Lo supermarket at Modbury North for the purpose of stealing. She arrived in Adelaide on 10 November 1992 and went to the Pooraka Motor Inn with three men named Peter Dobrosavljevic, Kalozi and Thompson. The appellant occupied a room with Peter, who was her boyfriend, and the other two men occupied another room. On 12 November a man by the name of Oltran also arrived. In the early hours of the morning of 13 November, the four men broke into the Bi-Lo supermarket and were in the act of attempting to force the safe when they were disturbed. Three of the men, namely Thompson, Kalozi and Peter were arrested. Oltran was not apprehended. The appellant made her car available to the men for the purpose of the break. When the men did not return as planned she contacted Oltran on a mobile telephone. Subsequently she and Oltran went to the scene of the supermarket to make observations and as a result of what they saw there apparently decided to leave the jurisdiction. 5. The appellant rang a Detective Barker with whom she was acquainted in Melbourne and told him that she had innocently become involved in trouble and asked his advice. He told her to contact the police but she did not take that advice. On the contrary, she purchased two air tickets to Sydney in a false name and travelled to Sydney with Oltran. Oltran remained in Sydney. The appellant immediately flew to Melbourne where she contacted Detective Barker and told a false story. She subsequently came to Adelaide and contacted the South Australian police and again told a false story exonerating herself from responsibility. 6. The crime to which the appellant was an accessory was a serious crime. As I have said, this group of people, of which she was a member, came from another State in order to commit a carefully planned break into a supermarket. She was not present at the scene but I think that the clear inference from the evidence which was given at the trial, is that she was a full participant in the scheme. I am unable to distinguish the degree of her culpability with respect to the break in from that of the men who actually perpetrated it. All were involved in the criminal intention and in the criminal plan and I think must bear equal responsibility for what occurred. 7. In addition to that, of course, the appellant has the responsibility for assisting Oltran to escape. That was a decision which was a separate decision from the decision to be involved in the principal crime. As I have already indicated, she rang Detective Barker and sought his advice. But, notwithstanding that advice, she decided to help Oltran to escape the jurisdiction and was instrumental in obtaining the tickets in the false names. 8. I must say that I consider that her criminal activity was serious. She is not a first offender. In 1989, at the age of 19 years, she was convicted of nine offences in the Magistrates Court in Victoria. One of those offences was making a false report. Another was attempting to obtain property by deception and seven were obtaining property by deception. It seems that, although there were nine offences, they all arose out of misuse of a credit card to which she was not entitled and in some sense might be regarded as part of the same course of conduct; although there clearly were nine separate offences. In those circumstances it seems to me that a sentence of imprisonment for 10 months was a lenient and perhaps, it might be said, a very lenient sentence. The only argument which merits consideration, indeed the only argument really put by Ms Branson, is the comparison between the sentence imposed upon this appellant and the sentences imposed upon her fellow offenders. Oltran, of course, has not been sentenced. Extradition proceedings are apparently still in progress in an effort to secure his return to South Australia. The three other men, however, have been sentenced. They each pleaded guilty to a charge of shopbreaking with intent. 9. Kalozi was sentenced to imprisonment for one year with a non-parole period of nine months and ordered to pay $2,260 compensation. Peter received the same penalty. Thompson was sentenced to imprisonment for one year with a non-parole period of nine months and ordered to pay $2,260 compensation, but his sentence was suspended upon his entering into a bond to be of good behaviour for a period of three years. Ms Branson has laid stress upon the suspension of Thompson's sentence. She has contended that the appellant's culpability is no greater than that of Thompson and her prior record no worse, and that her sentence ought to have been suspended also. 10. Where co-offenders are sentenced, the courts have an obligation to endeavour to preserve equity between those offenders by imposing sentences on the offenders respectively, which are fairly proportionate to the degree of their respective culpability and antecedents. Of course, individual factors affecting the offenders may lead to differences in sentences imposed even upon offenders with equal culpability. 11. Ms Branson has pointed out that by reason of the non-parole period of nine months fixed for the principal offenders, and because the sentence upon the appellant, being less than 12 months' imprisonment, does not attract parole, the appellant is actually subject to a longer period in custody than Kalozi or Peter. In one sense, of course, that is merely a consequence of the legislative provision that there shall be no parole with respect to a sentence of less than 12 months imprisonment. But it is also to be remembered that Kalozi and Peter both pleaded guilty and that they were to be sentenced for one crime only and not, as in the case of the appellant, two crimes. It may be, as Ms Branson has argued, that the judge would not have allowed a great discount for the plea of guilty in their cases, by reason of the fact they were apprehended at the scene of the crime, but it is not to be assumed that no significant allowance was made for the plea of guilty. 12. Ms Branson has argued that the appellant should not be regarded as having an increased degree of culpability by reason of having committed the second offence of assisting Oltran to escape. I am unable to agree with that. That is a separate offence and it carries, in the circumstances of this case, a maximum sentence of imprisonment for four years. To commit that offence was a deliberate decision made by the appellant after the break had gone wrong and after she had obtained Detective Barker's advice. I think that there is quite a distinct aspect of criminality about that offence. By that I mean that the commission of that offence was a criminal act quite distinct from, and requiring additional punishment to, the initial offence of being an accessory before the break. 13. I think, therefore, that there is a clear distinction between this appellant on the one hand and Kalozi and Peter on the other, upon these grounds. The same can be said with respect to the comparison between the appellant and Thompson. I must say that on the information before this court it is difficult to explain the suspension of Thompson's sentence. It is true that his only really relevant previous offending appears to have been when he was under the age of 18 years but, nevertheless, there are prior offences as an adult and the nature of this offence, I would have thought, would have made the suspension of the sentence very difficult. It may be that there were matters before the judge relating to Thompson of which we are unaware, which caused him to suspended that sentence. 14. However that may be, I think that the cases of Thompson and the appellant are to be distinguished, partly upon the grounds of distinction which apply to the comparison between the other offenders and the appellant, but also because the appellant, unlike Thompson, had prior convictions for dishonesty. I do not think that the supposed disparity argued by Ms Branson is a ground upon which this court should interfere with a sentence which can only be characterised as lenient, if not very lenient, for the serious crimes which the appellant committed. 15. In my view, therefore, the appeal should be dismissed.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 DEBELLE J I agree with everything the Chief Justice has said.