R v Arico (No 2)
[2002] VSCA 230
•23 December 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.10 of 2002
| THE QUEEN |
| v. |
| ROCCO ARICO (No.2) |
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JUDGES: | PHILLIPS, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 December 2002 | |
DATE OF JUDGMENT: | 23 December 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 230 | |
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Criminal law – Sentencing – Kidnapping – Victim taken from street, assaulted, detained and ransomed – Three co-offenders given like head terms and non-parole periods – Differences in personal circumstances and histories not such as to show error – No error in cumulating two years – Applicant’s sentence varied only to restore equality with offender undergoing earlier federal sentence – Crimes Act 1914 (Cth) ss.19AQ, 19AR.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. G. Horgan SC | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr. P.F. Tehan Q.C. | Theo Magazis & Assoc. |
PHILLIPS, J.A.:
This is an appeal by leave against sentence imposed in the County Court on 20 December 2001. The appellant was one of three men all of whom pleaded guilty to one count of kidnapping contrary to s.63A of the Crimes Act 1958. That offence carries a maximum penalty of 25 years. The offence was committed on 2 August 1999 by the three co-accused and a fourth man, Dino Dibra, who later died. At the time of the offending the appellant was 21 years old. Of the co-offenders, Kocoglu was 31 years old and Chimirri, 24 years old. Dibra was also 24 at the time.
The circumstances of the offending need be mentioned only briefly. The victim, one Kuloski, was attacked in the street by the four men who pulled up near him in a car. He was punched and kicked and pistol whipped. He was put in the boot of the car but, finding the release mechanism from within, he jumped from the car and tried to escape. The car stopped, the victim was pursued and again he was caught, kicked and punched. Two of the assailants held guns. The recapture of the victim was witnessed by a number of residents in the street and passers-by on the roadway. He was taken to the car again, and pushed down to floor level and threatened that if he moved he would be killed. He was taken to Dibra’s premises and kept there while money was demanded for his release. In the end the victim’s brother met a demand for $5,000. When the victim was released, he was bleeding from head and face with a gash to his face and was limping. Three of the assailants were arrested the following morning, 3 August, and Kocoglu was arrested at his home on 13 August. All four were interviewed and essentially made a no-comment record of interview. After a contested committal in July and November 2000, the matter was listed but on 29 November 2001 it was resolved. A presentment was filed over containing one count of kidnapping to which the three surviving offenders pleaded guilty.
As explained to the sentencing judge, the plea of guilty was accepted on the basis that each of the three accused admitted the relevant circumstances of the offence, including the initial abduction, the assaults, the escape and re-capture of the victim, the holding of the victim at Dibra’s house and the obtaining of the $5,000 ransom. Whilst it was alleged by the prosecution that hand guns were carried by two of the offenders, it was not alleged that any particular offender carried or used guns. The prosecution relied upon the fact that it was a joint enterprise in which the participants were fully aware that guns would be used. Each of the offenders relied upon his plea of guilty, but, of course, the prosecution case was very strong: it included not only what the witnesses saw of events in the street, it also included identification by observation through a surveillance video which, by chance, was at Dibra’s house and voice identification through intercepted telephone calls. There was also DNA material.
As the sentencing remarks disclose, his Honour was minded to impose a sentence of four and a half years’ imprisonment on each of the three who stood for sentence, two years to be served in custody before becoming eligible for parole. However, the position of each was complicated by earlier offending and previous sentences.
Chimirri, the only one of the three who did not subsequently seek to appeal, had prior convictions including a prior conviction for manslaughter. He was convicted and sentenced in March 1996 to be imprisoned for five and a half years with a non-parole period of three and a half years, but it seems that he was actually released in about September 1997. As this offending occurred in August 1999, it was probable, as the judge noted in his sentencing remarks, that the present offending was committed within the parole period. However, as his Honour said, it was not appropriate that he should speculate about whether the parole board would revoke parole and require service of the balance of the term. It was, after all, an offending which, if within the parole period, occurred very close to the end of it. Accordingly, when sentencing Chimirri the judge ordered simply that he be sentenced to a term of four and a half years, two years to be served before becoming eligible for parole. There was pre-sentence detention of 44 days.
As for the appellant Arico, he was arrested on 3 August and spent 11 days in custody before being released on bail on 13 August. On 15 July 2000 (that is, nearly a year later) he was involved in a street incident in which he shot another several times with a hand gun, seriously injuring his victim. He was found guilty by a jury of attempted murder and sentenced on 27 June 2001 to be imprisoned for nine years, with a non-parole period of seven years. There was pre-sentence detention of 346 days, commencing no doubt on the date of the offending, 15 July 2000. On 20 December 2001 Arico, too, was sentenced for the present offending to four and a half years’ imprisonment and, after some discussion with counsel about whether that should be served concurrently with or additionally to the existing sentence of nine years', in the end the judge ordered that two years of the new term be served cumulatively on the earlier.
In order to give effect to his general intention that the appellant, like the other two offenders being sentenced, should serve two years in custody for the kidnapping, the judge fixed a new non-parole period at seven and a half years from 20 December 2001. The judge had been informed on the plea that the earliest release date of Arico under the earlier sentence of nine years’ imprisonment was 26 June 2007, and now the projected earliest release date, being seven and a half years from the day of sentencing, would be 20 June 2009. There was, as his Honour said, “a discrepancy of some six days”, but that was considered of no moment.
As for Kocoglu, at the time of the offending he was on parole for a federal offence, a factor which attracted the complications of sentencing under the Crimes Act 1914 (Cth). The judge was told that on 12 August 1996 Kocoglu had been sentenced to 5 years’ imprisonment for the offence of importing drugs, three years having to be served before he became eligible for parole. Kocoglu was released on parole (the judge was told) on 17 October 1998 and thus offended again when some 10 months into the parole period. According to counsel for the Commonwealth, at the time of his release into the community Kocoglu had two years and five days still to serve: that is, the federal term was due to end on 22 October 2000.
According to the Commonwealth Crimes Act, if the offender is on parole already at the time of later offending, then when he is sentenced for the latter the parole order “is to be taken to have been revoked upon the imposition of the sentence or sentences” being imposed (s.19AQ(1)) and (by sub-s.(5)) the offender then “becomes liable to serve that part of the sentence ... for a federal offence that the person had not served at the time of his ... release under” the parole order. The sentencing judge, therefore, had to take account of the fact that, by virtue of the sentence being imposed on 20 December 2001, Kocoglu would now have to serve a further two years and five days for the federal offence, that being the unexpired portion of the federal sentence at the time of his release on parole.
Initially his Honour sentenced Mr. Kocoglu to a term of imprisonment of four and a half years, two years to be served cumulatively upon the completion of the unserved portion of the outstanding federal sentence. But that could not be, because the unserved portion of the federal sentence was only two years and five days so that two and a half years of the later term could not be wholly concurrent. When that was pointed out by counsel, his Honour reduced the head term being imposed for the kidnapping to four years and five days. With or without the order for cumulation of two years, the end result then became the same: Kocoglu was required to serve in custody two years and five days (being the balance of the federal term) and in addition two years for the State sentence imposed on 20 December. In his case, there were 96 days of pre-sentence detention to be reckoned as already served. His Honour declined to make a recognisance release order (as to which see s.19AR (3)(e) and (5)) and declined to fix a non-parole period (as to which see s.11 of the Sentencing Act 1991).
The failure of the judge to fix a non-parole period led Mr. Kocoglu to make his application for leave to appeal against sentence: that was the only ground taken. He, too, was given leave to appeal and we heard his appeal in conjunction with Mr. Arico’s. However, when it became apparent in the course of argument that, if there was error below - as to which we had reached no conclusion - one possibility was simply to increase the head term to four and a half years (as the judge had initially proposed) and then to fix a non-parole period of six months, the appellant very sensibly filed notice of abandonment. In the result, the sentence imposed below, of four years and five days, still stands - and it is in that context that I turn to the grounds of appeal taken by the appellant Arico.
There are two only. Ground 1 is that there was not sufficient disparity between the sentence imposed on the appellant and the sentences imposed on the two co-accused. It was accepted that the judge was fully entitled to see no significant difference in the role played by each in the kidnapping, but there were significant differences, it was submitted, in their personal circumstances and their histories, differences which should have resulted in both a lower head sentence and a shorter minimum term than were imposed. In developing this submission counsel put much emphasis upon the fact that while Chimirri had prior convictions from six court appearances, including a conviction for manslaughter, and was on parole at the time of the current offending, and Kocoglu had three previous convictions, including that of importing a prohibited substance, and was also on parole, the appellant had had only one previous court appearance which had resulted in a fine of some $1,200; nor at the time of the kidnapping was he subject to any court orders. His conviction and sentence for attempted murder, although occurring before the present sentencing, were for an offence committed after the kidnapping – and indeed nearly a year later.
Counsel dwelt too upon the difference in the ages of the offenders (the appellant being the youngest); that the appellant alone had made reparation in the sum of $1,666 (being one third of the $5,000 ransom money); that he came from a good family which was still supportive and that he had worked in the family business. But all these things, and others, were put on the plea and they were mentioned specifically by the judge in his sentencing remarks: they were not left out of account.
The argument of disparity is always a difficult one upon which to succeed, given that it dwells upon the differences and argues that insufficient weight was given to them. The weight to be given to all of the factors bearing upon sentence is essentially a matter for the proper exercise of the discretion and if the judge, fully appreciating the nature of his task, takes into account the relevant considerations, excludes irrelevant considerations and does not mistake the facts, there can be little reason for appellate interference, unless of course the sentence is manifestly inappropriate (which was not the case here). Counsel seem sometimes to forget that sentencing is an exercise of discretion. For the respondent it was submitted that while there were differences, obvious differences, in the personal circumstances and criminal histories of each of the three offenders standing for sentence, the judge was fully entitled to view them as he did: that is, as not such as to warrant significant variations in either head terms or minimum terms; and, despite Mr. Tehan's submission, I am simply not persuaded that there was any significant error in that regard.
It may be unusual, as counsel submitted, to find the same head sentence and the same minimum term meted out to each of three offenders but the sentencing exercise was in this case particularly difficult and I have no doubt that his Honour was fully alive to the difficulty that might have arisen had he attempted to tailor the sentences more finely than he did. The appellant’s offending by way of attempted murder, although occurring nearly a year after the kidnapping, cannot be put to one side altogether, as Mr. Tehan came close at times to submitting. It was relevant at the very least to the appellant's prospects of rehabilitation and, perhaps, to his remorse following the kidnapping. At the time of the kidnapping, he was indeed the youngest of the four participants but the possibility that he was led astray by his colleagues at that point does not at the very least sit well with his subsequent offending, when he pulled out a hand gun and shot his innocent victim - and shot him many times - on 15 July 2000. (In this regard we had the advantage of exploring the circumstances of that offence on an application made by Mr. Arico for leave to appeal against his conviction and sentence for attempted murder, an application in which we heard argument immediately before the argument on this appeal and which we have since dismissed.)
What I have just said is subject, however, to one further consideration not raised initially by counsel for the appellant, but seized upon as soon as counsel for Kocoglu announced that he abandoned his appeal. When the circumstances in which the judge came to sentence Kocoglu were being explored more fully by Mr. Croucher in argument, emphasis was placed upon the reduction of the head term from four and a half years to four years and five days. Seizing upon that reduction, Mr. Tehan in reply submitted that, whatever else might be said about disparity, his client should not have received a longer head term than did Kocoglu. The circumstances of the reduction in that head term have already been described, and they were peculiar to that offender. None the less, it is certainly arguable that Chimirri, with his previous convictions (including that for manslaughter) and Kocoglu, with his previous convictions - and both of them being on parole at the time of the kidnapping - could not properly have drawn, either of them, a shorter head term than did the appellant Arico; nor indeed does that appear to have been his Honour's intention. It was apparently no more than the unintended by-product of the last-minute change in the sentence imposed on Kocoglu.
The point made now on behalf of the appellant may in the end prove to be of little practical importance because, if we were to reduce the head term meted out to the appellant, of four and a half years, in order to bring it into line with that ultimately meted out to Kocoglu, the fact that (save as to two years) the head term is being served concurrently with the term imposed on 27 June 2001 for attempted murder means that the reduction will not affect the time spent in custody. Because of the last-minute change made by the judge in the sentence imposed on Kocoglu (with its apparently unintended consequence in respect of parity with the sentence imposed on Arico), there may be good ground now for our reducing the appellant's head term from four and a half years to four years and five days, but in my opinion there is no basis whatever for reducing the new non-parole period fixed by the sentencing judge, of seven and a half years from the date of sentencing, 20 December 2001.
That brings me to ground 2. Here it is alleged that there was error in the judge's order that two years be served cumulatively upon the earlier sentence of nine years. Such an order, it was claimed, offended against the principle of totality in that it produced sentences which, in total, were crushing: R. v. Mill[1] and Postiglione v. R.[2]. It was argued that the sentencing judge can have made no allowance for the principle of totality, but I do not agree. To increase the overall sentence by two years, by way of head term, and then to require that the further two years be served in custody did not, in the circumstances, result in an overall sentence which was crushing. The offending for which the appellant was being sentenced on 20 December 2001 was particularly nasty, and I need not repeat what I have already said about the basis upon which the plea of guilty was accepted by the Crown. The circumstances attending the kidnapping involved a good deal of brutality and, I should have thought, a good deal of risk to the life of the victim. Given that the appellant had already been sentenced to nine years for attempted murder, a further two years, by way of cumulation, cannot be said to be “crushing”. Nor was it “crushing” in that he was required to serve that further two years in custody.
[1](1988) 166 C.L.R. 59.
[2](1996) 189 C.L.R. 295.
For the reasons I have given I would, albeit with some reluctance, allow the appeal but only for the limited purpose of varying the head term imposed on 20 December 2001, by reducing it from four and a half years to four years and five days. Otherwise, I would dismiss the appeal. I would not interfere with the order that two years of that sentence be served cumulatively on the term of nine years imposed on 27 June 2001 and the order that the new non-parole period be fixed at seven and a half years from the day of sentencing in the County Court, 20 December 2001.
BUCHANAN, J.A.:
In my opinion the appeal should be allowed for the purpose only of varying the head term imposed on 20 December 2001 by reducing it from four-and-a-half years to four years and five days for the reasons stated by Phillips, J.A.
VINCENT, J.A.:
I agree with the disposition of this appeal as proposed by Phillips, J.A. for the reasons advanced by his Honour.
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