R v Hughes-Gage
[1998] VSCA 10
•6 August 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 86 of 1998
THE QUEEN
v
DUNCAN IAN HUGHES-GAGE
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| JUDGES: | WINNEKE, P., CHARLES and BUCHANAN, JJ.A. |
| WHERE HELD: | WARRNAMBOOL |
| DATE OF HEARING: | 6 August 1998 |
| DATE OF JUDGMENT: | 6 August 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 10 |
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Criminal law - Sentence - Burglary - Multiple counts - Same sentence imposed on each count - Standard sentence within range - Total effective sentence not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. W.H. Morgan-Payler | P.C. Wood, Solicitor for |
| QC and Mr. J.D. Singh | Public Prosecutions | |
| For Applicant | Mr. P.G. Priest | Tony Danos |
WINNEKE, P.:
I will invite Buchanan, J.A. to give the first judgment in this
application.
BUCHANAN, J.A.:
On 15 April 1998, the applicant, who is 27 years of age, pleaded guilty in the County Court to 22 counts of burglary, 23 counts of theft and one count of attempted burglary. On that day he was sentenced to a term of imprisonment of two years on each count of burglary and the count of attempted burglary and to a term of one year's imprisonment on each count of theft. The learned sentencing judge directed that one year of the sentence imposed on count 21 (a burglary count) and one year of the sentence imposed on count 32 (also a burglary count) be served cumulatively upon the sentence imposed on count 1 (a burglary count) and upon each other, making a head sentence of four years. The learned judge fixed a minimum term of two years before the applicant was to be eligible for parole. His driving licence was cancelled and he was disqualified from driving for a period of two years.
In the company of one or more of three younger men, the applicant forcibly entered commercial and factory premises and stole whatever was to be found that was of value - cash, tools, computer goods and office equipment. The series of burglaries and thefts took place between March 1996 and May 1997. The offences followed the same pattern. Each involved a forcible entry to industrial or commercial premises and the theft of whatever appeared to the applicant and his confederates to be worth stealing. The differences in the circumstances attending each crime were due to the physical problems posed by the construction of different premises and the measures taken for their protection, such as alarms, and the contents of those premises. The means adopted to enter the premises and the property stolen varied accordingly. By way of example, in the first burglary, at the Lightwave Technology factory in March 1996, the offenders forced open the front door by removing the door's lock barrel and stole laser alignment machinery valued at some $108,000. At the premises of Allied Hardware, in August 1996, they disabled an alarm, cut a padlock at the front gate and then cut a hole in the roof. They stole a safe containing $1,200 in cash and a motor car. In October 1996, at the Lost Wax Castings factory, the thieves entered through a window and loaded a photocopier, computer equipment, tools and mats into the applicant's utility and drove away. In January 1997, the applicant and a confederate climbed over a fence into the yard of Essendon Timber. They cut an alarm sensor and decamped with $16,000 taken from a safe in the premises. The other offences varied as to premises, methods of entry and goods stolen, but followed that pattern.
There are a number of grounds of appeal, which reflect an attack upon the sentences on two broad fronts. The first of those fronts is that the learned sentencing judge erred in failing to fix an appropriate sentence for each offence, but instead imposed the same sentence without giving individual consideration to the circumstances of each different offence. The second basis of the appeal is that the overall sentence was manifestly excessive.
Counsel for the applicant submitted that the learned judge adopted the wrong approach to the task of sentencing in respect of a number of counts. It was submitted that his Honour was required to pass appropriate individual sentences on each count and, through orders for cumulation, to arrive at an appropriate head sentence.
| 6 | If the error complained of by the applicant were established, it matters not that the total effective term was one within the sentencing judge's discretion. In R. v. Lomax [1998] 1 V.R. 551, the sentencing judge imposed the same term of imprisonment on a number of counts. The Court of Appeal held that, as certain of the sentences in respect of individual counts were excessive, there was an error which re-opened the sentencing discretion, notwithstanding that the total effective sentence was not excessive. Similar errors led to re-sentencing in R. v. Elov (unreported, 14 May 1998, Court of Appeal) and R. v. Thomas (unreported, 20 May 1998, Court of Appeal). In each of those cases there was a sentence imposed on one or more counts which was clearly excessive. In Elov and Thomas the sentencing judge, like the learned judge in the present case, imposed the same sentence on each of a number of counts. In respect of some counts, that standard sentence was excessive because the circumstances attending the offences were sufficiently different to the circumstances of other offences for which the standard term was appropriate. |
However, imposition of the same sentence for even a large number of counts does not necessarily connote error on the part of the sentencing judge. If the standard sentence is appropriate in the sense of being within range for each count, and if the circumstances constituting the offences are sufficiently alike, one sentence may be properly applied to all of a large number of counts.
In the present case I am of the opinion that the circumstances attending the individual burglaries and thefts were sufficiently alike to render the same sentence appropriate in each case. In the case of each count, the applicant, in company with one or more younger confederates, forcibly entered factory or commercial premises and stole the most valuable articles which could be found. As I have said, the differences between the crimes were accounted for by the different physical problems encountered in gaining entry to the premises, and the contents of the premises. I consider the degree of criminality in each case, and the relevant sentencing objectives such as deterrence and rehabilitation, to be much the same.
The count which at first sight may seem to warrant a lesser sentence than two years' imprisonment was count 6, the attempted burglary. The circumstances of that offence were that the applicant and others had tried to force open the front door of a skylights factory by removing the lock barrel from the door. The applicant, in his record of interview, said:
"Basically, the offsider was having a bit of trouble with the lock, and - and by this time the security patrol vehicle came round the corner, and where it's situated, the headlights of the vehicle shine straight on the premises in front, so therefore we decamped on foot."
Although the attempted burglary differed from the completed burglaries, the applicant and his associates were so far advanced upon the enterprise that I consider that the learned judge was justified in treating the offence as sufficiently similar to the other counts to be punished in the same way.
In the case of the theft counts, the different values of the property stolen, in my opinion, do not take any individual sentences outside the range of appropriate sentences, having regard to their context in the overall criminal enterprise.
With multiple offences, it is preferable to impose individual sentences which, so far as practicable, are appropriate to each count, and to make them concurrent, or largely so, even to the extent of directing concurrency to a greater degree than might otherwise have been justified, rather than imposing lower sentences which are individually inappropriate and making numerous orders for cumulation to achieve an appropriate total effective sentence. See R. v. Lomax. The learned sentencing judge has proceeded in that fashion in the present case.
In my view, the individual sentences are appropriate, and the learned judge has accommodated the principle of totality by making the sentences largely concurrent.
That brings me to the second broad basis of the appeal, that the total sentence is manifestly excessive. Counsel for the applicant put forward a number of considerations favouring leniency. The applicant had seven prior convictions, the result of four court appearances. However, none of those offences involved dishonesty. They were largely offences of violence against persons and property, and the applicant had not suffered incarceration, although on two occasions prison sentences imposed upon him had been suspended.
It was submitted that the applicant was influenced by others to offend, and thus his culpability was reduced. The evidence given by the applicant himself is that he was taught by others but he was an apt and willing pupil. He said:
"They were equal co-offenders. They taught me things that I never ever would have known and probably to this day never thought I would know. I did pick up things. I did learn by 'This is how easy it is to do this'. These guys had a locksmith's picking licence and they - techniques like you wouldn't believe."
The co-offender said to be the principal influence upon the applicant was one Lander, yet Lander had nothing to do with the first burglary committed by the applicant. On that occasion his associate was a drug addict. The applicant learned from his confederates, but he was not just a follower.
There were prospects for the applicant's rehabilitation. The applicant had been a hard worker in the demanding trade of house re-stumping. The applicant himself expressed remorse and his employer and his uncle said that they thought he was remorseful. The applicant frankly acknowledged his crimes to the police and pleaded guilty at the end of the committal hearing.
In my opinion, the considerations relied upon by the applicant's counsel do not overcome the gravity of the applicant's criminal conduct. The number of burglaries and thefts, the substantial time over which they were carried out and the methodical, workmanlike manner in which they were executed are the hallmarks of a significant criminal enterprise, one in which the applicant willingly participated as a principal.
In my opinion, the individual and total effective sentences were well within the learned judge's discretion. I would dismiss the application.
WINNEKE, P.:
I agree.
| CHARLES, J.A.: | |
| 21 | I also agree. |
| WINNEKE, P.: | |
| 22 | The formal order of the Court will be that the application for leave to |
appeal against sentence is dismissed.
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