R v Baloi
[2001] VSCA 99
•6 June 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.287 of 2000
No.300 of 2000
| THE QUEEN |
| v. |
| MIODRAG BALOI and VEROLIUB BALOI |
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JUDGES: | WINNEKE,A.C.J., ORMISTON and BUCHANAN,JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 June 2001 | |
DATE OF JUDGMENT: | 6 June 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 99 | |
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Criminal law - Sentence - Assault, aggravated burglary, intentionally causing serious injury - Judge not sentencing on agreed facts and principles relating to parity - Total effective sentences of four and six years' imprisonment reduced to three years and three months and five years respectively.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant Miodrag Baloi For the Appellant Veroliub Baloi | Mr L.K.Barker Mr R. Bourke | Jonathan Kemp & Associates Galbally Rolfe |
WINNEKE, A.C.J.:
I will invite Buchanan, J.A. to give the first judgment in this matter.
BUCHANAN, J.A.:
Early in October 1999 the appellant Miodrag Baloi discovered that his wife had been having an affair with one Stoilovic. The appellant struck his wife. He telephoned his brother, the other appellant, who arrived shortly and was informed of his brother's wife's infidelity. The appellants, who had been drinking and were affected by alcohol, proceeded to Stoilovic's house. Miodrag Baloi wished to confront Stoilovic and obtain an admission of adultery with his wife.
The appellants entered Stoilovic's house, having been admitted by Stoilovic's de facto wife. Unknown to Miodrag Baloi his brother was armed with a wheel brace concealed in his clothing. The appellants accused Stoilovic of committing adultery. He denied it. The appellants assaulted Stoilovic, Miodrag Baloi using his fists and Veroliub Baloi using the wheel brace. The medical evidence was consistent with the victim being struck two or three times by the wheel brace. The attacks took place in the presence of the de facto wife of Stoilovic and at least one of his two young children. Veroliub Baloi threatened to rape and kill Stoilovic and his de facto wife.
Stoilovic was seriously injured. His skull was fractured and it was necessary to remove a large extradural haematoma. Fortunately he completely recovered from his injuries.
The appellants pleaded guilty in the County Court to a number of charges. Miodrag Baloi was charged with assaulting his wife, aggravated burglary and intentionally causing serious injury to Stoilovic. His brother was charged with aggravated burglary, intentionally causing serious injury to Stoilovic and threatening to kill Stoilovic and his de facto wife.
Miodrag Baloi was sentenced to a term of 12 months' imprisonment for the offence of assault, to a term of two years' imprisonment for the offence of aggravated burglary and to a term of three years' imprisonment for the offence of intentionally causing serious injury. The sentence imposed for the assault was cumulated upon the sentence for intentionally causing serious injury, producing a total effective sentence of four years' imprisonment. A term of two years' imprisonment was fixed before the appellant was to be eligible for parole.
Veroliub Baloi was sentenced to a term of two years' imprisonment for the offence of aggravated burglary, to a term of six years' imprisonment for the offence of intentionally causing serious injury and to a term of 18 months' imprisonment on the charge of threatening to kill. Notwithstanding that pursuant to s.6B of the Sentencing Act the appellant was a serious violent offender, the sentencing judge directed that all the sentences be served concurrently, so that the total effective sentence was one of six years' imprisonment. A term of four years' imprisonment was fixed before the appellant was to be eligible for parole.
The appellants were born in Romania. Miodrag Baloi is now 39 years of age and his brother is aged 36 years. Miodrag Baloi left school at the age of 10 years. He worked on the family farm and as a motor mechanic. He migrated to Australia at the age of 23 years. He obtained work at a factory, where he fell, severely injuring his back. Despite many operations he was totally and permanently disabled, and has been unable to work since the accident. The appellant and his wife have three dependent children, one of whom suffers from cerebral palsy. The appellant used heroin for a time and had prior convictions for possession and use of heroin and trafficking in heroin, for which he was punished by fines. According to a forensic psychologist's report:
"In my opinion Mr Baloi appears to be both genuinely remorseful and ashamed concerning his offending behaviour."
Veroliub Baloi arrived in Australia in 1988 and took up residence with his brother. A couple of years later he entered into a de facto relationship with a woman who had two daughters. A son was born of the relationship in 1994. Since his arrival in Australia the appellant had worked as a housepainter and was continuously employed until his imprisonment. Veroliub Baloi also had prior convictions for possession of and trafficking in heroin.
The appellants have been granted leave to appeal against the sentences.
Miodrag Baloi's appeal is based upon 14 grounds. For the most part the grounds can be seen as particulars of the ground that the sentence was manifestly excessive, for the grounds complain of mitigating factors alleged not to have been given sufficient weight and too great weight being given to general deterrence. There are also a number of grounds alleging specific error.
It was submitted by counsel for the appellant that he ought not to have been sentenced to a term of imprisonment for the assault upon his wife. The assault took place immediately after the victim admitted to the appellant that she had committed adultery. The assault did not cause serious injury, and the appellant and his wife were reconciled. Physical violence by a man against his wife is not justified by a confession of adultery, but it may be said that the degree of force exerted by the appellant did not warrant a sentence of twelve months' imprisonment. Another error in connection with this sentence was alleged to be his Honour's description of the appellant "beating a confession of adultery out of his wife". The prosecutor in opening the case to his Honour did not disclose such an event. The prosecutor said that the appellant hit his wife at his home and once at the house of Stoilovic. The appellant's counsel told the sentencing judge that his client slapped his wife once at home and once at Stoilovic's residence. We were told by counsel for the respondent that the assault consisted of two slaps, one at the appellant's house, the other at Stoilovic's residence, and the first slap succeeded the confession of adultery. Clearly the sentencing judge proceeded upon an incorrect basis that went to the substance of the charge.
Although the appellant complained that the sentence imposed on him in respect of the charge of intentionally causing serious injury was manifestly excessive, I do not consider that the sentence can be properly so described. The attack by Miodrag Baloi upon Stoilovic is not to be seen as limited to the punch which he threw at Stoilovic. He pleaded guilty to intentionally causing serious injury and the serious injury was inflicted with the wheel brace.
By his plea the appellant admitted to being a party to the infliction of that terrible wound. The appellant had no prior convictions for offences of violence, and it is plain enough that at the time of the commission of this offence he was labouring under some emotional strain. The sentencing judge described the provocation as "significant". The appellant pleaded guilty, and that factor warrants a discount in the sentence that would otherwise have been imposed. The forensic psychologist whose report was before the court was of the view that he was genuinely remorseful. While the sentencing judge did not make an express finding as to remorse, he did say that he referred to the psychologist's report "in its entirety". Even taking into account those mitigating factors, I do not consider that the sentence was outside the range available to the sentencing judge.
Veroliub Baloi also contends that the sentencing judge made specific errors in the course of sentencing him and that the sentences imposed upon him were manifestly excessive.
A specific error complained of by Veroliub Baloi is said to be that the sentencing judge failed to give due weight to the appellant's plea of guilty. The sentencing judge said the appellant "is entitled to credit for his plea and I take it into account in the sentencing process". It was said that the judge did not identify the value of the plea. I do not think he was obliged to spell that out, and ultimately the ground can be seen as a particular of the ground of manifest excess.
The appellant next complains that the sentencing judge regarded the appellant's prior convictions as significant and relevant. As I have said, the convictions were not for offences of violence, and in this respect did not show that he had a dangerous propensity or needed specially to be deterred from committing like crimes. Nevertheless, reading his Honour's sentencing remarks as a whole, I do not think that the prior convictions played any greater part in the sentencing process than showing that the appellant was not to be regarded as a man possessing an unblemished character.
The appellant also complains that the sentencing judge failed to give sufficient weight to the facts that the victim had made a full recovery and the offences were spontaneous. The judge expressly found that the victim suffered no permanent disability and the crimes were crimes which he described as ones of passion. I regard the complaints as particulars of the ground of manifest excess.
The appellant contends that his sentence of six years' imprisonment is so disparate from the head sentence of three years imposed upon his brother for the offence of intentionally causing serious injury as to give rise to a justifiable sense of grievance, constituting a breach of the rules of parity. As I have said, Miodrag Baloi was party to the harm inflicted upon Stoilovic and he was not to be sentenced as one who punched the victim as distinct from hitting him with a steel bar. Accordingly I do not think a disparity of the magnitude which is illustrated by the sentences was in this case warranted.
Another specific error relied upon by the appellant was that the sentencing judge erred in refusing to have any regard to the delay between charge and sentence. The crimes were committed on 2 October 1999. The appellant was arrested and remanded in custody the following day. The appellant pleaded guilty at the committal mention, which was held on 25 May 2000. He was held in remand accordingly for almost one year.
The sentencing judge said:
"[Counsel] submitted that there has been a long delay waiting in custody for this plea to be dealt with and, as such, a discount in sentence ought to be considered. I do not agree."
His Honour said that he did not regard the delay as inordinate.
Counsel in this Court relied upon the statement of Tadgell, J.A. in R. v. Miceli[1], where his Honour said:
"There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. The remarks of Sir Laurence Street in R. v. Todd [1982] 2 N.S.W.L.R.517 at 519 and 520 have not infrequently been adopted by this court upon the point. Again, the remarks to a similar effect of the Court of Criminal Appeal in R. v. Kane [1974] V.R.759 at 767 have not infrequently been applied. Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life. That is what happened here.
Prosecuting counsel before the judge made the point that here the delay had not been inordinate. There is, in my opinion, no requirement that a delay should be inordinate before it deserves to be taken into account in accordance with the principles adopted in the cases I have mentioned."
[1][1998] 4 V.R. 588 at 591.
It is important to observe, in my view, that his Honour said that while the delay did not have to be inordinate, it must be undue. Otherwise delay would be a factor to be considered in practically every case. The facts in R. v. Miceli should also be borne in mind. In that case the offender was interviewed in February 1995 and made full admissions of the crimes with which he was charged. He was not charged until February 1996 and the case was not heard until March 1997.
The facts in the present case are quite different. In the present case I am of the opinion that the delay was neither undue nor inordinate.
The appellant was granted leave by this Court to amend the grounds of appeal by adding the following ground:
"The learned sentencing judge erred in sentencing the appellant on count 5 on the basis that the appellant had threatened to kill Stoilovic's children."
The sentencing judge did say that the appellant threatened "to kill and to rape the children of Stoilovic". The statement of Stoilovic's de facto wife, which the prosecutor read to the sentencing judge, included the sentence: "Veroliub said he wanted to rape and kill me and the children." That, however, was not the offence charged.
For the reasons I have stated, I consider that the sentencing discretion is reopened in respect of both appellants.
I would re-sentence the appellant Miodrag Baloi to a term of six months' imprisonment on the count of assault, two years' imprisonment on the count of aggravated burglary and three years' imprisonment on the count of intentionally causing serious injury. I would cumulate three months of the sentence on the count of assault upon the count of intentionally causing serious injury, making a total effective sentence of three years and three months. I would fix the term of 21 months' imprisonment before the appellant is to be eligible for parole.
I would re-sentence Veroliub Baloi to a term of two years' imprisonment on the count of aggravated burglary, to a term of five years' imprisonment on the count of intentionally causing serious injury and to a term of 12 months' imprisonment on the count of threatening to kill, making a total effective sentence of five years' imprisonment. I would fix a minimum term of three-and-a-half years' imprisonment before the appellant is to be eligible for parole.
WINNEKE, A.C.J.:
I agree that each appeal should be allowed and that sentences be imposed in the terms indicated by Buchanan, J.A.
I would simply add that I think each of these appellants is very lucky to have had his sentence reduced, and that that has been occasioned because of errors which
have been discerned in the judge's sentencing remarks - errors which, so far as I can see, have not been due entirely to the fault of the judge.
ORMISTON, J.A.:
Having regard to the agreed facts and the relevant authorities, I agree with the disposition of these appeals, substantially for the reasons stated by Buchanan, J.A.
I would add that the alteration of the sentence on Miodrag Baloi on assault results from an error relating to the basic facts which was not adequately drawn to the judge's attention. Thus, if the facts had been as appeared from the depositions, which also originally appeared in the summary of evidence for this Court, the judge's observations on the count of assault and his sentence would have been fully justified. On the facts agreed, I agree with the proposed alteration to that sentence and with the order for cumulation. As to the count of intentionally causing serious injury, I believe the sentence was clearly inadequate, but in the circumstances it is not possible to vary it.
As to the sentence on Veroliub Baloi, I agree with reluctance in the proposed orders. I do so only because we are compelled by reason of the so-called principles relating to disparity. As I have said, his brother's sentence was manifestly inadequate, but that does not relieve us from the task of applying the principles.
The result is, regrettably, that there are two inadequate sentences now imposed. Nevertheless I am obliged to agree in the proposed orders.
WINNEKE, A.C.J.:
The orders of the Court will be as follows:
In the appeal by Miodrag Baloi -
The appeal is allowed. The sentences below are quashed and in lieu thereof we impose the following sentences:on count 1 - six months' imprisonment;
on count 2 - two years' imprisonment;
on count 4 - three years' imprisonment.
We direct that three months of the sentence on count 1 be served cumulatively upon the sentence imposed on count 4. The total effective sentence is therefore one of three years and three months. We order that the appellant serve one year and nine months before becoming eligible for parole.
Pursuant to s.18(4) of the Sentencing Act we declare that 316 days have been served pursuant to this sentence, including the time between the date of sentence and today's date. We direct that the fact that this declaration has been made and its details be entered in the records of the Court.
In the appeal of Veroliub Baloi we make the following orders -
The appeal is allowed. We quash the sentences imposed below and in lieu thereof we impose the following sentences:on count 3 - two years' imprisonment;
on count 4 - five years' imprisonment;
on count 5 - one year's imprisonment.
We direct in respect of count 5 that the sentence be served concurrently with the sentences imposed on counts 3 and 4. The total effective sentence is therefore one of five years. We direct that the appellant serve a period of three years and six months before becoming eligible for parole.
We note that in sentencing the appellant on count 5 he has been sentenced as a serious violent offender. We direct that that fact be entered in the records of the Court.
Pursuant to s.18(4) of the Sentencing Act we declare that the appellant has served a period of 636 days pursuant to the sentence imposed, including the time served between sentence and today's date, and we declare that the fact of that declaration and its details be entered in the records of the Court.
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