R v Gopurenko
[2001] VSCA 207
•13 November 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 338 of 2000
| THE QUEEN |
| v. |
| STEPHEN JOHN GOPURENKO |
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JUDGES: | BROOKING, PHILLIPS and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 November 2001 | |
DATE OF JUDGMENT: | 13 November 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 207 | |
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Criminal law - Sentencing - Unlawful imprisonment and recklessly causing serious injury - Imprisonment ordered for 8 months (little more than the pre-sentence detention) and 18 months wholly suspended for 18 months - Mistake effecting cumulation instead of concurrency as intended - Error corrected on appeal by varying terms of suspended sentence - Without prejudice to offender's liability to answer for re-offending while on suspended sentence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.J. Ryan | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr R. Backwell | Victoria Legal Aid |
BROOKING, J.A.:
Phillips, J.A. will deliver the first judgment.
PHILLIPS, J.A.:
On 1 March 2000, a young man called Dusty Richter arrived at a property in Koorlong as a grape picker. He was provided with accommodation in the pickers' hut, which housed three of the four other pickers already working there. They were Trickey and Dixon, both of whom were 18 years old, and the applicant Gopurenko, aged 22. Veliscek, who was in his fifties, slept nearby in a tent.
On the Saturday, 4 March, all five pickers went off to the hotel in Mildura and there was a lot of drinking. At some stage in the afternoon they adjourned back to the property and the drinking continued. Late in the afternoon Richter saw Veliscek's bank book fall to the ground. He picked it up and concealed it. Departing then to buy cigarettes, he found the bank book to contain $50 in cash and he hid it among the ines. On his return about an hour later the applicant Gopurenko accused Richter of taking Veliscek's bank book and attacked him physically. Trickey joined in and the two of them so dealt with Richter as to push him against a drum containing a fire which caused severe burns to his side. Dixon was present and did nothing to stop this.
When Richter managed to push himself away from the fire, Trickey and Gopurenko dragged him out to the grape vines, demanding to be shown where the bank book was hidden. Dixon was present, and at this point they were joined by Veliscek. Richter was then held prisoner while he was taken up and down the grapevines, as a search was made for the bank book. There is no need to go into the details of the indignities heaped upon Richter as the search went on. Suffice it to say that among other things he was punched and kicked by one or other of the four from time to time before he eventually escaped.
All four of Richter's attackers were arrested and interviewed not long afterwards. They were duly presented in the County Court on charges of unlawful
imprisonment (count 1) and recklessly causing serious injury (count 2). All four pleaded guilty and were sentenced. Gopurenko alone was given an immediate custodial sentence and it is his application for leave to appeal against that sentence that we have now to determine.
The maximum penalty for unlawful imprisonment is 10 years and for recklessly causing serious injury 15 years. As the sentencing judge said, "these were particularly serious offences because they were carried out by a group upon one young man who was virtually defenceless ...", and there is no doubt but that Gopurenko and Trickey were the main offenders. After pleas in mitigation by counsel for all four accused, Veliscek was sentenced (on count 1) to three months' imprisonment, which was wholly suspended for 12 months, and (on count 2) fined $150. Dixon was sentenced, without conviction, to a community-based order for two years, with a special condition that he undertake counselling for drug and alcohol abuse. Trickey was convicted but was otherwise sentenced, like Dixon, to a community-based order for two years with a similar special condition. Gopurenko was sentenced (although this was later altered as will be seen) to six months' imprisonment on count 1 and 12 months' imprisonment on count 2, the one to be cumulative upon the other, making a total effective sentence of 18 months. A non-parole period was fixed of eight months and it was declared that 242 days had already been spent in pre-sentence detention.
The difference in the sentences imposed on the four accused was due in part no doubt to the different role played by each; as I have said, Trickey and Gopurenko were the main offenders. It was doubtless due also to their different ages: both Dixon and Trickey were only 18 years old at the time and like Veliscek, whose role was minimal, they had no, or no relevant, previous convictions. Gopurenko on the other hand was 22 years old at the time of the offending and admitted 43 previous convictions from seven court appearances in and between May 1994 and February 1998. Five of these were for crimes of violence, including two charges of assault occasioning actual bodily harm whilst in company. His previous sentences included terms of imprisonment - and in fact on 4 March 2000 he was on parole for offences committed in Queensland. Although the applicant's grounds of appeal include a complaint that there was disparity in sentencing (see ground 5), thus far there can be nothing in that complaint, for there was every ground for the difference so far described. Nor was the sentence as initially imposed on the applicant manifestly excessive, the other ground taken in the notice of appeal (see ground 1) with particulars in grounds 2 to 4.
The difficulty in this case stems from what followed after the initial sentencing of Gopurenko and when his counsel told the sentencing judge, who was sitting in Mildura at the time, of the applicant's instructions "that the next transport back to Melbourne is in 19 days". When the judge was asked if he could do something to speed that up, he said that he couldn't. No doubt counsel's concern arose from the fact that the non-parole period had been fixed at eight months, which was little more than the time already spent in pre-sentence detention, so that, if parole was granted as soon as it was available, the applicant would have been released very shortly. Yet he was stuck in Mildura, in the police cells.
After discussion between the Bench and counsel this exchange is recorded:
"HIS HONOUR: Well Mr Gopurenko I've had cause to reflect about you and I think there's disparity between you and the others. I think what I'll do with you is, if I make a period of - say you've got to sit out the 19 days here, and then I suspend the rest of your sentence, will that be fairer on you do you think?
PRISONER: Yes Your Honour.
HIS HONOUR: Will you sit it out in 19 days up here?
PRISONER: Yes. Yes Your Honour.
HIS HONOUR: Alright. Well I'll change Gopurenko's sentence. I order that he be sentenced to serve a period of 18 months. I'll wholly suspend all but - what's 249 days plus 19?
MR REARDON: 261, Your Honour.
HIS HONOUR: 261. I'll make it 262 ... "
The prisoner was then formally re-sentenced. On count 1, the charge of unlawful imprisonment, it was ordered that he be sentenced to imprisonment for 262 days, the judge ordering "on that charge" that the period of 242 days pre-sentence detention be reckoned as time served. On count 2, it was ordered that the applicant be imprisoned for a period of 18 months, wholly suspended for 18 months, that is to say "a period to 1 May 2002". He was then warned about the consequence of his re-offending: should he be brought back upon re-offending, he was told he would "have to do the full 18 months".
The applicant now complains that this re-sentencing did not alleviate his sentence, as the judge seemed minded to do, but added to it significantly - and Mr Ryan for the Crown does not disagree. As the applicant was first sentenced, his total effective sentence was 18 months and, had the applicant been released on parole at the earliest possible time, he would have been in custody for only eight months, most of which had already been served. If he then re-offended, the Parole Board might have required him to serve the balance of the term, being ten months or less. When re-sentenced, the initial period in custody was extended by 20 days, and a further period of imprisonment of 18 months was imposed, albeit that it was wholly suspended for 18 months. If the applicant re-offended after his release, he was liable, as the judge indeed warned him, to imprisonment for those 18 months, on top of the initial period of 262 days, which is nearly nine months, and which, being additional to the 18 months' imprisonment, can therefore be regarded as essentially additional, at least arithmetically, to the total effective sentence first imposed.
There is nothing to suggest that the judge intended this increase in the overall sentence and nothing, I might say, which seems to me to warrant it. I have little doubt but that the judge intended that the initial period of 262 days in custody was to be reckoned not only as the sentence imposed on count 1 but also, concurrently, as part of the sentence imposed on count 2. What was to be suspended was the balance of the 18 months, not the whole of it, and the sentencing orders ultimately made simply failed to give effect to that intention.
In my opinion we should therefore grant the application for leave to appeal against sentence, allow the appeal and vary the sentences imposed below as follows. I would first confirm that on count 1 the applicant should be imprisoned for 262 days and on count 2 for 18 months. If no order is made for cumulation, those two sentences will fall to be served concurrently so that the total effective sentence is of 18 months' imprisonment, but with the applicant's having the benefit as at 1 November 2000 of 242 days already served as pre-sentence detention. As the judge fixed 262 days (which is nearly nine months) as the sentence on count 1 quite deliberately in order that the applicant might then be released into the community to serve the balance of the sentence, I would vary the terms of the order for suspension by reducing the period to be suspended by those 262 days and reducing also the period during which that suspension was to operate by nine months. As all this will take effect as at the date of sentencing in the County Court, this will be taken to have required that the applicant serve only the balance of the term of 18 months (over and above that first 262 days) if he were to re-offend within the next nine months.
I put it like that because re-offend during those nine months is exactly what the applicant did do - as we now know. Thus far I have made no mention of events subsequent to sentence on 1 November because, in the ordinary way, they are irrelevant to our present task. But, having been given a suspended sentence in the County Court on 1 November 2000, the applicant was released from prison a few days later, on 8 November. In February 2001 he was remanded in custody on a number of charges of burglary, theft and obtaining property by deception and on 24 April last he appeared in the Magistrates' Court at Melbourne and pleaded guilty to 29 charges of such offences committed between 28 November 2000 and 13 February 2001. Thus he commenced re-offending less than three weeks after his release.
On 24 April the applicant was sentenced in the Magistrates' Court as follows. On nine charges of burglary and one of theft of a motor car, an aggregate sentence was imposed of 24 months' imprisonment, but it was ordered that this be wholly suspended for 24 months. On nine charges of theft and ten charges of obtaining property by deception, the applicant was placed on a community-based order for a period of 12 months with conditions including that he perform 100 hours unpaid community work over six months. Now, it must be said that the applicant seems to have been dealt with by the magistrate very leniently, given that the offences in question were committed while he was serving a suspended sentence and given his previous history of offending. Perhaps the magistrate thought that, in the circumstances, it was enough that the applicant would be called to book for having offended again while serving a suspended sentence: after all in view of the sentence finally imposed on 1 November, it must have seemed probable that the applicant would be required to serve a further 18 months in custody for the attack on Mr Richter.
But in saying that about the magistrate's reasons for sentencing I speculate; for we do not have the benefit of what was said at the time. I mention the re-offending only for one purpose, which is to emphasise that in re-sentencing the applicant now, on this appeal, I am proposing that we simply vary the sentence that was imposed on 1 November 2000 in the County Court. To the extent that that sentence was suspended for 18 months, in addition to reducing the period to be suspended we would be reducing also the period during which that suspension was to operate, as from the original date of sentencing, 1 November. It is still the case therefore that when the applicant was released from prison on 8 November he was released upon a suspended sentence, with all that that entails, and when he commenced to re-offend on 28 November he was re-offending while on a suspended sentence. That was how it was at the time and it remains so notwithstanding that upon our allowing this appeal we will be varying to the extent already described the terms of that suspended sentence, if what I have proposed finds favour with the other members of this Court. It is significant that the variation I am proposing is one that would first have effect well after the period from 28 November to 13 February, the period of the admitted re-offending.
BROOKING, J.A.:
I agree.
VINCENT, J.A.:
I agree.
BROOKING, J.A.:
The order of the Court is as follows:
The application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and allowed. The sentence below on count 2 is varied by substituting, for the order wholly suspending the sentence for a period of 18 months, an order suspending 285 days of the sentence for a period of 9 months. Otherwise both sentences are confirmed.
The sentence on count 1 and the varied sentence on count 2 are both to be taken to have been passed on the date of the sentence below, that is, 1 November 2000.
The Court notes that its variation of the sentence on count 2 will have the result that the applicant is liable to be dealt with for any breaches of the order suspending the sentence on count 2 committed during the operational period of that sentence, namely, the period of 9 months.
The Court makes no new declaration with regard to pre-sentence detention, save to declare that such time should be reckoned as having been served under the sentences imposed on both count 1 and count 2, since in its view its order merely varying the sentence on count 2 is not one whereby an offender is sentenced to a term of imprisonment within the meaning of s.18(1) of the Sentencing Act 1991.
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