Peter Mai v The Queen
[2017] VSCA 1
•18 January 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0206
| PETER MAI | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | WEINBERG AND KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 January 2016 |
| DATE OF JUDGMENT: | 18 January 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 1 |
| JUDGMENT APPEALED FROM: | DPP v Tsivicos, Mai [2015] VCC 1555 (Judge Chettle) |
---
CRIMINAL LAW – Application for leave to appeal against sentence – Theft – Applicant sentenced to 20 months’ imprisonment with 12 month community correction order — Co-offender with significant criminal history sentenced to 3 years’ imprisonment with non-parole period of 2 years for same offence – Whether parity principle misapplied – Whether sentence manifestly excessive – Appeal allowed on parity ground – Applicant resentenced to 16 months’ imprisonment and 12 month community correction order – Sentencing Act 1991 s 5(2AA)(a) considered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich QC with Mr V Andreou | Christopher James Lawyers |
| For the Crown | Ms D Piekusis | John Cain, Solicitor for Public Prosecutions |
WEINBERG JA
KYROU JA:
Introduction and Summary
On 13 October 2015, the applicant was convicted by jury of one charge of theft, the maximum penalty for which is 10 years’ imprisonment.[1] On 29 October 2015, he was sentenced to 20 months’ imprisonment and ordered to serve a community correction order (‘CCO’) for a period of 12 months with a special condition that he perform 200 hours of unpaid community work to commence upon completion of the term of imprisonment.[2]
[1]Crimes Act 1958 s 74(1).
[2]DPP v Tsivicos, Mai [2015] VCC 1555 (‘Reasons’).
The applicant’s co-offender, Savvacis Tsivicos, was convicted by the jury of the same offence and was sentenced to 3 years’ imprisonment with a non-parole period of 2 years.
The applicant seeks leave to appeal his sentence on the basis that the judge misapplied the parity principle and imposed a sentence that is manifestly excessive.
For the reasons that follow, the application for leave to appeal will be granted, the appeal will be allowed and the applicant will be resentenced as set out at [46] below.
Circumstances of offending
On Friday 1 November 2013, the Toll IPEC depot at the Chadstone Shopping Centre received a large delivery of televisions. At 3:20 pm that day, a phone call was received by the manager of the Toll depot. Someone purporting to be from Harvey Norman, the company that was to ultimately receive the televisions, claimed to need the televisions for a store promotion over the coming weekend. It was arranged that a truck would be sent to collect the televisions later that day.
The caller was not from Harvey Norman, but someone setting up the theft of the televisions. At 5:07 pm, a truck bearing false number plates and driven by the applicant, arrived at the Toll depot. Mr Tsivicos was sitting in the passenger seat of the truck. The manager loaded the truck to capacity with 110 televisions which had a total wholesale value of $161,105.
Following a request from the manager for the appropriate paperwork, the applicant drove the truck away.
The applicant and Mr Tsivicos were arrested on 5 December 2013 and both gave no comment interviews. All but one of the stolen televisions were never recovered.
The applicant’s personal circumstances
The applicant was 33 years of age at the time of sentencing. He was born in Australia, a year after his parents arrived from Vietnam as refugees. He has four siblings.
The applicant left school at the end of Year 11 and obtained work in a processing factory, warehouses, and in 2011, with a demolition company. He was employed until the time that he was remanded in custody at the conclusion of the trial. He has been in a long term relationship since 2007.
The applicant was convicted of common law assault on 21 February 2005 and fined $2,000. He has no other convictions.
The applicant’s father died in 2010 at the age of 53. From that time, the applicant looked after his mother at the family home.
Mr Tsivicos’s personal circumstances
Mr Tsivicos was 42 years of age at the time of sentencing. He was born in Melbourne to parents who migrated from Cyprus. He struggled at school, possibly because he had sustained serious head injuries when he was 8 years old and again when he was 11. He left school in Year 11 to commence an apprenticeship which he did not finish because the company employing him ceased operation. He returned to Cyprus, completed his military service, and worked in a bar for two years.
At the age of 22, Mr Tsivicos returned to Melbourne and worked as a courier and as a labourer. He opened a tattoo shop, but it was not a success. Around four and a half years ago, he established a transport business.
Mr Tsivicos had commenced using drugs while at school and when he returned from Cyprus, he used stimulants, illicit drugs, and abused alcohol. His drug use continued when he operated the tattoo business. He suffered from poor health, including insulin dependent diabetes since 2012 and recurrent kidney problems. He had been hospitalised on a number of occasions as a result.
At the time of sentencing, he had kidney stones which required treatment and he took medication for that and for his diabetes condition. Due to his health problems, he had stopped using illicit drugs and alcohol.
Mr Tsivicos had an extensive criminal history spanning from 18 June 1992 until 1 October 2013. He had committed five dishonesty offences for which he received fines, an adjourned bond and a suspended prison sentence. He also had numerous convictions for drug offences, including trafficking and cultivation.
He had committed numerous road traffic offences. These included twice driving with authorisation suspended, for which he received a 6 month term of imprisonment to be served by an intensive correction order in May 2010, and a 6 month suspended sentence in September 2010. He went to prison for three months in May 2012 on seven charges of driving while disqualified and a CCO was also made.
On 25 March 2013, Mr Tsivicos was dealt with for failing to comply with the intensive correction order. He was sentenced to 6 months’ imprisonment to be served by an intensive correction order. On 1 October 2013, he was sentenced to 4 months’ imprisonment, such sentence to be suspended for 12 months. He was serving the suspended sentence when he stole the televisions on 1 November 2013.
Sentencing remarks
The judge described the offending as ‘serious criminal activity’ that was ‘well planned [and] well organised’.[3]
[3]Reasons [18].
His Honour stated that there was nothing to distinguish between the applicant and Mr Tsivicos in relation to the roles each played in the offending. However, he considered that there was a significant distinction to be drawn between their personal circumstances.[4] Specifically, Mr Tsivicos was older than the applicant and had a substantial prior criminal history which was ‘significantly more relevant to sentencing’ than the applicant’s.[5]
[4]Reasons [22].
[5]Reasons [11]. See also Reasons [22].
The judge accepted the applicant’s submission on the plea that his solid work history, supportive family and friends, lack of relevant prior criminal history, and the fact that his offending was said to be out of character meant that he had good prospects of rehabilitation. In that sense, specific deterrence was of ‘limited relevance’ in sentencing him.[6]
[6]Reasons [17].
The applicant and Mr Tsivicos were both assessed as suitable for a CCO. The applicant was assessed as a low risk of reoffending, but Mr Tsivicos was assessed as a medium risk.
The judge said that the court must give consideration to the objective gravity of the crime and the personal circumstances of the applicant and Mr Tsivicos in determining the appropriate sentence.[7] In relation to the appropriate sentence for the applicant, he concluded as follows:
[T]he seriousness of [the] offending, in my view, requires a term of imprisonment, but I propose to impose a sentence that reflects the serious nature of [the] offending and [his] personal circumstances, and combine that term of imprisonment with a [CCO].[8]
[7]Reasons [21].
[8]Reasons [24].
In relation to Mr Tsivicos, the judge concluded as follows:
Having considered the seriousness of [the] offending and [his] personal history, I am of the view that … a term of imprisonment in excess of two years is required to reflect principles of general deterrence, specific deterrence and denunciation and just punishment, so no [CCO] is available in [Mr Tsivicos’s] case.[9]
[9]Reasons [23].
Grounds of appeal
The applicant originally relied on the following proposed grounds of appeal:
1The learned sentencing judge erred in imposing sentence on the basis that a Community Correction Order could not be imposed if the court ‘[was] of the view that a sentence of two years or less [could] not serve the purposes of sentencing’.
2The learned sentencing judge erred in the exercise of his discretion in misapprehending the circumstances in which a Community Correction Order could be made.
3The learned sentencing judge has erred in the exercise of his discretion in that he has imposed sentence upon the Applicant in breach of the sentencing principle of parity.
4The sentence imposed upon the Applicant by the learned sentencing judge is, in all the circumstances of the case, manifestly excessive.
At the commencement of the hearing of the application for leave to appeal, the applicant was given leave to abandon Grounds 1 and 2.
Ground 3: Parity principle
The applicant does not seek to challenge the judge’s finding that there was nothing to distinguish the roles played by the applicant and Mr Tsivicos in the relevant offence.[10] However, the applicant submitted that in the light of the judge’s finding that there was a ‘significant distinction’ in the personal circumstances of the two offenders,[11] there is an insufficient difference between the respective sentences imposed upon them.
[10]See [21] above.
[11]See [21] above.
The applicant emphasised the aspects of his circumstances which meant that specific deterrence was of ‘limited relevance’,[12] and which could be contrasted with those of Mr Tsivicos. They were said to be that the applicant: had a solid work history and a supporting family; had been assessed as having a lower risk of reoffending than Mr Tsivicos; and had one ‘irrelevant and minor’ prior conviction while Mr Tsivicos had ‘an extensive, more substantial and particularly relevant criminal history’ which involved commission of the theft of the televisions while serving a suspended sentence of imprisonment.[13]
[12]See [22] above.
[13]Applicant’s written case paras 17–21.
According to the applicant, as a CCO is punitive and capable of satisfying the requirements of just punishment,[14] the difference between the sentence imposed on him and that imposed on Mr Tsivicos is manifestly inadequate and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done.
[14]The applicant referred to Boulton v The Queen (2014) 46 VR 308, 340 [138], 342 [150]–[152].
The Crown submitted that in the circumstances of this case where the role of each offender was the same and the only difference was in their personal circumstances, the difference between the two sentences was within the order that one would expect, and did not offend the principle of equal justice.
In oral argument, an issue arose as to whether s 5(2AA)(a) of the Sentencing Act 1991 precludes this Court from having regard to the non-parole period imposed on Mr Tsivicos when considering whether the judge properly applied the parity principle. That section relevantly provides:
Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to —
(a)any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind …
The applicant submitted that the parity principle requires a comparison of not only the head sentences but all components of the sentences imposed on co-offenders, including any non-parole period. In support of this proposition, the applicant relied upon Postiglione v The Queen,[15] Green v The Queen,[16] Boultonv The Queen[17] and Joseph v The Queen.[18] According to the applicant, s 5(2AA)(a) of the Sentencing Act does not prohibit this Court from taking into account any non-parole periods imposed on co-offenders by a sentencing judge for the purpose of determining whether the parity principle has been infringed. This was said to be because, in such a case, the Court is not taking into account the non-parole periods ‘in sentencing an offender’ but for the purpose of deciding whether the disparity between the sentences imposed on co-offenders is such as to infringe the important sentencing principle of equal justice.
[15](1997) 189 CLR 295, 302 (‘Postiglione’).
[16](2011) 244 CLR 462, 473–4 [30].
[17](2014) 46 VR 308, 342 [155].
[18][2014] VSCA 343 [79], [82] (‘Joseph’).
The Crown conceded that s 5(2AA)(a) of the Sentencing Act does not provide a blanket prohibition on consideration being given to non-parole periods imposed on co-offenders in determining whether the parity principle has been infringed. Such consideration was said to be appropriate in cases such as Joseph where non-parole periods have been imposed on all co-offenders but not in a case such as the present where a non-parole period has been imposed on only one co-offender. According to the Crown, as a combination sentence comprising a custodial sentence without a non-parole period and a CCO was imposed on the applicant and a head sentence and a non-parole period were imposed on Mr Tsivicos, consideration of the non-parole period cannot assist the Court in determining whether the parity principle has been infringed.
We agree with the applicant’s submission that s 5(2AA)(a) of the Sentencing Act does not preclude this Court from taking into account the non-parole period imposed on Mr Tsivicos in determining whether the judge failed properly to apply the parity principle. In Postiglione, Dawson and Gaudron JJ made it clear that, for the purposes of the parity principle, consideration must be given to all components of the sentences imposed on co-offenders, including any non-parole periods.[19] In our opinion, consideration of a non-parole period is not prohibited by s 5(2AA)(a) where the purpose of that consideration is not ‘in sentencing an offender’ but rather in determining whether the parity principle has been infringed.
[19]Postiglione (1997) 189 CLR 295, 302.
In Joseph, this Court held that a substantial difference in the non-parole periods imposed on co-offenders can give rise to a justifiable sense of grievance.[20] We reject the Crown’s submission that consideration of a non-parole period is inappropriate in a case such as the present where such a period is imposed on only one co-offender. For the reasons set out below, the non-parole period imposed on Mr Tsivicos is relevant to a consideration of the parity principle.
[20]Joseph [2014] VSCA 343 [79], [82].
In our opinion, the personal circumstances of the applicant are so different from those of Mr Tsivicos that the principle of equal justice required greater disparity in the sentences imposed on them.
The applicant’s submissions which we have summarised at [29] above highlight the key differences between his circumstances and those of Mr Tsivicos. The most significant among them are Mr Tsivicos’s extensive relevant criminal history which made specific deterrence particularly relevant for him, and cast a doubt on his prospects of rehabilitation, compared to the applicant’s relatively clean record, and good prospects of rehabilitation.
The judge acknowledged that there were significant differences between the applicant and Mr Tsivicos. His Honour sought to reflect those differences in the sentences he imposed on them. By imposing on the applicant a shorter custodial sentence coupled with a CCO, the judge endeavoured to give effect to the parity principle. However, the fact that the combination sentence imposed on the applicant, totalling 32 months, is only four months less than the 3 year sentence imposed on Mr Tsivicos, indicates that the judge may have erroneously considered that a CCO for a term of 12 months was not to be viewed as seriously punitive in nature.
Once it is recognised that a CCO is, and is intended to be, punitive for the entirety of its term,[21] the sentences imposed on the applicant and Mr Tsivicos do not diverge to the extent necessary to reflect the differences in their personal circumstances. Indeed, if Mr Tsivicos were to be granted parole after two years, he would be in the community for a period of eight months at the same time as the applicant was in the community serving his CCO. During that overlapping period, the applicant would be subject to more restrictions on his liberty than Mr Tsivicos. Those restrictions include the performance of 200 hours of unpaid community work. From the applicant’s perspective, that would legitimately be regarded as unfair.
[21]Boulton v The Queen (2014) 46 VR 308, 340 [138], 342 [152]–[152].
Accordingly, Ground 3 is made out.
Ground 4: Manifest excess
The applicant submitted that in the light of his personal circumstances, and notwithstanding the circumstances of the offending, the sentence imposed on him was beyond the range of sentences which might reasonably have been imposed.
The Crown submitted that the judge rightly recognised that, in addition to the applicant’s personal circumstances, he had to take into account the seriousness of the offending in determining an appropriate sentence. This was said to be so given the judge’s findings that the offending was sophisticated and well planned, and the fact that remorse was not a relevant feature.
According to the Crown, the sentence imposed is well within the range of sentences available for this type of offending. That submission was supported by three cases to which the judge was referred by the prosecution on the plea.[22] In each of those cases, a head sentence of three years or more was imposed, and according to the Crown, none of those cases, or the other cases referred to on the plea, support the submission that the sentence imposed is manifestly excessive.
[22]Lucas v The Queen [2012] VSCA 245; R v King [2006] VSCA 76; R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
We agree with the Crown’s submissions. A sentence of 20 months’ imprisonment with a 12 month CCO for a well-planned theft of 110 televisions with a wholesale value of $161,105 is well within the range of sentences available for such an offence. The combined effect of the mitigating circumstances in favour of the applicant is insufficient to take the sentence outside that range.
Resentence
Our conclusion that the judge failed properly to apply the parity principle requires that the applicant be resentenced, albeit by a relatively modest adjustment to his sentence.[23] In all the circumstances, we will reduce the custodial sentence to 16 months and maintain the term and conditions of the CCO made by the judge.
[23]The modest adjustment reflects the fact that a parity ground has succeeded rather than a manifest excess ground.
8
0