R v Hallier
[2005] VSCA 26
•9 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 193 of 2004
| THE QUEEN |
| v. |
| ALAN HALLIER |
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JUDGES: | WINNEKE, P., CHARLES and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2005 | |
DATE OF JUDGMENT: | 9 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 26 | |
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Criminal law - Sentence - Multiple counts of theft and obtaining property by deception - Extensive criminal history - Judge erring in failing to give credit for admission of certain charges - Head sentence of 38 months affirmed but non-parole period reduced from 26 to 21 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr R. Melasecca | Rob Melasecca |
WINNEKE, P.:
I will invite Buchanan, J.A. to give the first judgment in this appeal.
BUCHANAN, J.A.:
The appellant is 37 years old. His parents were loving and supportive and the first years of his life were happy. He became, however, a rebellious teenager. At the age of 10 years he was made a ward of the State. In his early teens he escaped from Baltara with others from time to time and lived roughly, living off the proceeds of petty crime. The appellant left school at the age of 15 years and at the age of 17 years started using heroin.
The appellant's addiction to heroin has dominated his adult life. In 1990 he formed a relationship with another heroin user. They have remained together and have a six-year-old daughter. From time to time the appellant has abstained from heroin for quite long periods, but has always relapsed. He has an extensive criminal history, which is largely explained by his addiction. His first conviction was recorded in 1986. The appellant has some 80 convictions from 13 court appearances, including convictions for theft, burglary, assault, drug offences, driving offences and street offences.
In the period between 20 January 2002 and 31 March 2003 the appellant was in the grip of his addiction. He financed his use of heroin by breaking into cars, stealing credit cards and using the cards to obtain goods or funds from the accounts of the cardholders. The appellant concentrated on cars parked outside leisure centres and swimming pools, presumably reasoning that the owners were likely to leave valuable personal possessions in their motor cars. The appellant was careful not to disturb the interior of the vehicles he entered and locked them when he left, in order to postpone the cancellation of the credit cards. The value of the goods purchased with credit cards and the amount of money withdrawn from accounts totalled $69,000.
As a consequence of this crime spree the appellant was arraigned in the County Court on a presentment containing in all 54 counts comprising 19 counts of theft, 14 counts of obtaining property by deception, one count of attempting to obtain property by deception, 18 counts of attempted theft and two counts of money laundering. The appellant pleaded guilty to all the counts. After a plea he was sentenced to be imprisoned for terms varying between two months and eight months' imprisonment on each of the counts. With a measure of cumulation a total effective sentence of 38 months' imprisonment was produced. The sentencing judge fixed a non-parole period of 26 months.
The appellant was granted leave to appeal against his sentence. The grounds of appeal which were pursued by counsel for the appellant were:
"1.That the learned sentencing judge based his sentence on incorrect findings of fact in respect of the significant question of remorse.
2.That the learned sentencing judge did not give sufficient weight to the remorse of the applicant.
3.That the learned sentencing judge gave insufficient weight to the high level of co-operation and plea of guilty of the applicant.
5.That the learned sentencing judge was incorrect in taking the view that a rehabilitative disposition was no longer available to the applicant.
6.That in the event that any of the grounds above are made out then the sentence is manifestly excessive."
The appellant was interviewed by the police on 21 February 2003. He said he would not comment on any of the matters put to him by the police. He was released on bail. On 21 March 2003 the appellant attended at a police station and admitted the charges in counts 55 and 56. He was again released on bail. On 31 March 2003 the appellant was arrested and charged with counts 34 to 45, all committed on 31 March 2003. He was remanded in custody and subsequently admitted the offences constituted by counts 1 to 24 and 27.
The police had evidence from surveillance of the appellant of the commission of a small number of the offences. The only evidence to prove many of the offences consisted of the appellant's admissions. Counsel for the respondent concedes that the sentencing judge erred in apparently thinking that the appellant committed other offences after he admitted to counts 1 to 24 and 27. That was not so. The appellant, however, did commit other offences after admitting to counts 55 and 56. The error led the judge to apparently wholly discount the benefit of the admissions because he thought offences had been committed after the admissions were made. His Honour said:
"... on 12 March, on your own initiative, you were re-interviewed and admitted the first 27 counts on the presentment. Again you were bailed. ... There is no doubt that this episode does provide evidence of remorse, but that is considerably tempered by a realisation that, having made those admissions and having been re-bailed, you then continued with the balance of the numerous offences that are on this presentment."
The effect of the error is that the sentencing judge mistakenly failed to give any credit to the appellant for giving to the police the evidence that established 25 counts. Accordingly, in my view, the error vitiated the sentence imposed upon the appellant and the sentencing discretion has been re-opened. I regard the individual sentences fixed by the sentencing judge as moderate and the total effective sentence as appropriate. I would, however, vary the non-parole period, for I think it is necessary to do so in order to adequately reflect the level of the appellant's co-operation with the police. Accordingly, I would allow the appeal, confirm the individual sentences and orders for cumulation imposed by the sentencing judge, but set aside the non-parole period and in lieu thereof fix a period of 21 months before the appellant is to be eligible for parole.
WINNEKE, P.:
I agree.
CHARLES, J.A.:
I also agree.
WINNEKE, P.:
The formal orders of the Court will be -
The appeal is allowed.
The Court confirms the individual sentences and the orders for cumulation which were made by the sentencing judge.
The total effective sentence will therefore be one of 38 months.
The Court directs that the appellant serve a period of 21 months before becoming eligible for parole.
In accordance with s.18 of the Sentencing Act the Court declares that a period of 678 days has already been served by the appellant pursuant to the sentences imposed and the Court directs that that declaration and its contents be entered in the records of the Court.
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