Love v The Queen
[2011] VSCA 410
•8 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0041
| BRIAN LESLIE LOVE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO JA and ROSS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 8 November 2011 |
| DATE OF JUDGMENT | 8 November 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 410 |
| JUDGMENT APPEALED FROM | R v Love (Unreported, County Court of Victoria, Judge Mason, 27 January 2011) |
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CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to nine charges of theft, three charges of attempted theft and one charge of intentionally causing injury – Sentenced to total effective sentence of 2 years and 6 months’ imprisonment – Sentence wholly suspended for period of 2 years and 6 months – Appellant’s co-offender was earlier sentenced in Magistrates Court to aggregate sentence of 8 months’ imprisonment to be served by way of intensive correction order – Whether sentencing judge erred in application of parity principle – Crown concession – Appeal allowed – Appellant re‑sentenced to total effective sentence of 8 months’ imprisonment – Sentence wholly suspended for period of 8 months – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr R O’Neill | Robert Stary Lawyers |
For the Crown | Ms S M K Borg | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
On 17 January 2011, the appellant, Brian Leslie Love, pleaded guilty in the County Court to nine charges of theft, three charges of attempted theft and one charge of intentionally causing injury. After hearing a plea in mitigation of sentence, the sentencing judge sentenced him on 27 January 2011 as follows:
Charge
Offence
Sentence
Cumulation
1
Theft
4 months’ imprisonment
2 months
2
Theft
4 months’ imprisonment
2 months
3
Theft
4 months’ imprisonment
2 months
4
Theft
4 months’ imprisonment
2 months
5
Theft
4 months’ imprisonment
2 months
6
Theft
4 months’ imprisonment
2 months
7
Theft
4 months’ imprisonment
2 months
8
Attempted theft
2 months’ imprisonment
1 month
9
Attempted theft
2 months’ imprisonment
1 month
10
Intentionally causing injury
9 months’ imprisonment
Base sentence
11
Attempted theft
2 months’ imprisonment
1 month
12
Theft
4 months’ imprisonment
2 months
13
Theft
6 months’ imprisonment
2 months
The orders for cumulation made by his Honour resulted in a total effective sentence of 2 years and 6 months’ imprisonment. The sentence was wholly suspended for a period of 2 years and 6 months.
The appellant’s co‑offender, Peter Georgiou (‘Georgiou’), had already been dealt with on 30 August 2008 in the Magistrates’ Court on similar charges. He was charged with two counts of attempted theft, two counts of assaulting a police officer, one count of resisting a police officer, one count of intentionally damaging property, two counts of theft, one count of recklessly causing injury, one count of assault with a weapon, one count of unlawful assault, one count of recklessly causing serious injury, one count of making a threat to kill and one count of intentionally threatening serious injury.
Georgiou pleaded guilty to the theft charges against him and was tried and convicted on the other charges he faced. He was sentenced to an aggregate sentence of eight months’ imprisonment to be served by way of an intensive correction order under s 19 of the Sentencing Act1991.
Circumstances of the offending
The offending to which the charges against the appellant and Georgiou related took place on the evening of Sunday 11 March 2007 and the early hours of Monday 12 March 2007.[1] They committed a series of thefts together in the Mooroolbark and Lilydale area.
[1]It should be noted that some of the charges against Georgiou, including the charges of assaulting a police officer, intentionally damaging property and making a threat to kill, related to conduct in which he engaged after he and the appellant had separated. They thus concerned criminal activity in which the appellant had no involvement.
Charges 1 to 7 involved the appellant and Georgiou breaking into cars and stealing various items from these cars, including cash, torches, mobile phones, wallets and a watch. These items were subsequently recovered by the police and returned to their owners.
Charge 8 involved the appellant and Georgiou attempting to open the door of a car. This attempt was observed by the owner of the vehicle, an off-duty police officer who was at his home in Mooroolbark. The police officer had heard a noise outside his house and subsequently looked through a window and witnessed the attempt.
Charge 9 also involved an attempt to open the door of a car. It was again witnessed by the police officer, who, after asking his wife to contact the police, had walked outside and saw the appellant trying to open the driver’s-side door of a car parked across the street.
Charge 10 occurred after the police officer confronted the appellant and Georgiou, identified himself as a member of the police force and told them they were under arrest. The appellant and Georgiou approached the police officer, who repeatedly yelled at them to get down on the ground. The police officer had a wooden police training baton in his hand, and he raised it as he backed away from the appellant and Georgiou. The appellant then lunged forward and punched the officer to the right side of his face. Georgiou joined him and they both fought with the officer, punching and hitting him numerous times on the head, body and arms. In an attempt to defend himself and effect the arrest of the appellant and Georgiou, the officer used the baton to strike both men around the shoulders, upper arms and thighs. At some point, the appellant ceased attacking the officer and sat down on the ground whilst Georgiou continued the assault. The appellant then rose to his feet and ran away from Georgiou and the officer. After a lengthy struggle, Georgiou was eventually arrested by the officer and police from Mooroolbark attended the scene.
As a result of the attack, the police officer suffered bruising to his upper body, torso and left thumb, and abrasions on both knees, his left elbow and forearm and left shin. He also suffered swelling over the left side of his forehead, one centimetre redness over the centre of his forehead and over the bridge of his nose, an abrasion over the right side and on the inner surface of his upper lip, a crack to his central incisor tooth and a circular area of bruising to the centre of his chest. The sentencing judge noted that this circular bruise to the chest was alleged to have been the result of being bitten by Georgiou.
Charge 11 involved the appellant gaining entry to a car and trying to start the car with a key. The key broke off in the ignition. Count 12 involved him stealing the ‘face plate’ of the radio in this car and an airline boarding pass that was also in the car. These items were recovered by the police and returned to their owner.
Charge 13 involved the appellant stealing a Holden Commodore utility and driving away in it. The appellant was located by police and arrested around an hour and a half after stealing this vehicle. He had been involved in a collision at some point after stealing the vehicle and it was extensively damaged.
The appellant was admitted to a hospital shortly after his arrest where he underwent emergency surgery for a serious brain injury. He remained in hospital for around six months and required extensive rehabilitation therapy. Although the sentencing judge did not make this clear in his sentencing remarks, it was accepted by the parties at the plea hearing that the injury was suffered by the appellant in the course of the criminal activity for which he was sentenced.
This appeal
On 17 June 2011, Redlich JA granted the appellant leave to appeal against his sentence. The grant of leave was restricted to the sole ground that the sentencing judge erred in the application of the parity principle.
The submission with respect to this ground was essentially that there was nothing in the appellant’s and Georgiou’s respective roles in the offending, or in their relevant personal circumstances, that warranted a disparity in the sentences they received ― or at least a disparity in favour of Georgiou. Nevertheless, the appellant submits, he received a much harsher sentence than Georgiou, leaving him with a justifiable sense of grievance.
The Crown has conceded that this ground of appeal should be upheld. In this Court, counsel for the Crown conceded that a total effective sentence of between 6 and 8 months’ imprisonment would not be inappropriate. This concession coincides with a submission by the appellant’s counsel as to an appropriate sentence. I consider that that concession, and the submission which coincides with it, were not inappropriate.
Accordingly, the appellant should be re-sentenced as follows:
Charge
Offence
Sentence
Cumulation
1
Theft
4 months’ imprisonment
2
Theft
4 months’ imprisonment
3
Theft
4 months’ imprisonment
4
Theft
4 months’ imprisonment
5
Theft
4 months’ imprisonment
6
Theft
4 months’ imprisonment
7
Theft
4 months’ imprisonment
8
Attempted theft
2 months’ imprisonment
9
Attempted theft
2 months’ imprisonment
10
Intentionally causing injury
6 months’ imprisonment
Base sentence
11
Attempted theft
2 months’ imprisonment
12
Theft
4 months’ imprisonment
13
Theft
6 months’ imprisonment
2 months
This results in a total effective sentence of 8 months’ imprisonment. This sentence should be wholly suspended for an operational period of 8 months. For the avoidance of doubt, the sentence should be deemed to have been imposed, and the operational period to have begun, on 27 January 2011.
ROSS AJA:
I agree with the orders proposed by his Honour for the reasons that he has given.
BONGIORNO JA:
The order of the Court is that:
1. The appeal is allowed.
2. The sentences of imprisonment imposed below are set aside and in lieu thereof the sentences that I have referred to are imposed.
3. The Court directs that 2 months of the sentence imposed on charge 13 be served cumulatively upon the sentence imposed on charge 10 but that otherwise all the sentences be served concurrently, making a total effective sentence of 8 months’ imprisonment.
4. The sentence is wholly suspended for an operational period of 8 months.
5. The sentence is deemed to have been imposed, and the operational period to have begun, on 27 January 2011.
6. All ancillary orders of Judge Mason made 27 January 2011 are confirmed.
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