R v Kendall
[2009] VSCA 152
•18 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 692 of 2008
| THE QUEEN |
| v |
| BRIAN PATRICK KENDALL |
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JUDGES: | BUCHANAN and VINCENT JJA and COGHLAN AJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 18 June 2009 | ||
DATE OF JUDGMENT: | 18 June 2009 | ||
MEDIUM NEUTRAL CITATION: | [2009] VSCA 152 | ||
JUDGMENT APPEALED FROM: | R v Brian Patrick Kendall | ||
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Criminal law – Sentence – Theft – Obtaining financial advantage by deception – Knowingly dealing with the proceeds of crime – Attempt to obtain a financial advantage by deception – Possessing a drug of dependence – Parity – Crown concession regarding more serious criminal history of co-accused – Appeal allowed – Lesser sentence imposed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr C B Boyce | Victorian Legal Aid |
BUCHANAN JA:
I will ask Coghlan AJA to deliver the first judgment.
COGHLAN AJA:
The appellant was sentenced in the County Court at Melbourne on 13 June 2008 for six counts of theft, three of obtaining financial advantage by deception, knowingly dealing with the proceeds of crime, attempting to obtain a financial advantage by deception, and possessing a drug of dependence. He was sentenced to a total effective sentence of four years nine months, with a period of three years before the appellant would be eligible for release on parole. At the same hearing, Esther Sidaris pleaded guilty to theft, two counts of dealing with the proceeds of crime, obtaining financial advantage by deception, attempting to obtain financial advantage by deception, and possessing a drug of dependence. She was sentenced to be imprisoned for four years with a non-parole period of two years. One count of obtaining property by deception (count 9), one count of obtaining financial advantage by deception (count 5) and one count of theft (count 6) were charged jointly.
The appellant and Ms Sidaris admitted prior convictions. The appellant admitted 61 prior convictions from eight court appearances. Ms Sidaris admitted 274 prior convictions from 21 court appearances.
The appellant made application for leave dated 17 June 2008. When his application for leave was granted on hearing before Maxwell P, the Solicitor for Public Prosecutions conceded, with respect to the grounds 4, 5 and 6 in the notice of appeal, that there was error and it was said on that application that this matter should proceed as a plea, and, subject to this Court being convinced that a different sentence should have been imposed, then allowing the appeal.
The appellant was charged with theft of a number of motor vehicles (count 2 and count 3). Each of the vehicles was recovered in the possession of the appellant. They were bearing stolen number plates, which were the subjects of counts 1 and 4. Count 5 related to obtaining financial advantage by deception involving both accused. A rental car, a dark blue BMW sedan, was rented by the accused Sidaris in the presence of the appellant in a false name, using a stolen credit card: that was on 16 April 2006. The car was rented for three days, paid in advance. The subsequent keeping of the car led to count 6, theft of a motor car. The vehicle was recovered on 10 June 2006 in the possession of both accused. It had stolen number plates attached (count 7). Between 3 May 2006 and 3 June 2006, the two accused used a stolen Bank of Melbourne credit card in the name of Vivian Gelman to obtain goods and services from stores, restaurants, service stations and hotels around Melbourne and Geelong. The count was pleaded as a rolled-up count with two attached schedules. Schedule A set out 99 transactions totalling $108,618.03 and was said by the prosecution to relate to 'purchase made only by Sidaris, Sidaris alone, from 99 different merchants'. Schedule B set out eight transactions totalling $24,055 and was said by the prosecution to relate to purchases made by Sidaris and Kendall together. There is some crossover between the conduct that is involved in those two amounts. Count 10 involved knowingly dealing with a stolen National Australia Bank Visa Card belonging to Ivan Martinovic. Count 12 relates to the use of a card to obtain property and services: it was a rolled-up count and related to five transactions totalling $4,487.22. Count 13 relates to an attempt to obtain goods to the value of $11.39 using the same card. Count 15 is a count relating to the possession of amphetamine.
On 10 June 2006, both accused were arrested at Waterfront Apartments at 2 Yarra Street, Geelong. The three stolen vehicles referred to in counts 2, 3 and 6 were recovered, as were the stolen number plates referred to in counts 1, 4 and 7. When a search warrant was executed on the apartment in which the two accused were staying, various other items relating to other counts were found. A small quantity of amphetamine was recovered: that became the subject of count 15 for both accused.
Each of the accused was arrested and made a 'no comment' record of interview. The appellant was released on bail but failed to appear at the filing hearing on 15 June 2006. He was arrested and remanded in custody on 20 July 2006. He was later released on bail on 29 August 2006. His case was fixed for contested committal on 19 September 2007 but proceeded by way of hand-up brief. The appellant pleaded not guilty and was released on bail. After seven case conferences or mentions, the matter resolved as a plea. The appellant had originally been charged with 319 offences.
The appellant was born on 22 May 1963 and is now 46 years of age. Ms Sidaris was born on 9 August 1979 and is now 29 years of age.
The maximum penalty for theft and obtaining financial advantage by deception is 10 years' imprisonment; for dealing with the proceeds of crime, 15 years' imprisonment; for attempting to obtain financial advantage by deception, five years' imprisonment; for possession of a drug of dependence, one year's imprisonment or 132 penalty units.
Although the appellant has extensive prior convictions, those convictions are predominantly for street and traffic offences, but he does have four court appearances for dishonesty involving 42 convictions. Thirty-one of those convictions occurred in one appearance before the Melbourne Magistrates' Court on 18 August 1999, when he was sentenced to be imprisoned for six months; that sentence was suspended for 12 months. He does not appear to have offended between July 2000 and March 2006.
It was conceded by the Crown in supplementary submissions, for the purpose of this appeal, that the criminal history of the co-accused, Ms Sidaris, was significantly more serious than that of the appellant and that she had been sentenced to actual terms of imprisonment on a number of occasions.
The appellant came to Australia from Belfast with his family in 1972, when he was eight years old. He is the father of two boys aged 13 and 10 at the time of the plea. They live with their mother in Tasmania, and he has, when practicable, had some access to the boys. He is the youngest of four children and remains close to his siblings and his mother. He did not quite complete Form 4 and started to work first of all at Goodyear in Thomastown where his father worked. After a few months he moved on to the merchant navy where he worked for about ten years; that was up to about 1990. Later, when working for Telecom, he started smoking heroin and did so for about eight months. He moved to Tasmania with his then partner, who is the mother of his two sons. He returned to Melbourne after a few years and recommenced his use of heroin, this time intravenously. He eventually sent his partner and children back to Tasmania and he moved in with his mother in Kinglake. He lived in a number of parts of Australia in the following years.
He remained addicted to heroin. In 1999 he commenced a course at Windana, which lasted for 14 months, as an in-patient. He has remained off heroin ever since. It was with the assistance of those at Windana that he cleaned up his outstanding court matters in 1999 and 2000. He then went back to Kinglake, where he worked as a labourer and was involved in another relationship for about five years. He later became involved in the building industry in New South Wales. He bought a house and was settling down, but his relationship broke down and he returned to Melbourne, where he commenced the use of amphetamines and methyl-amphetamine ('ice'). He then met the co-accused and they formed a relationship. What followed was a form of crime spree in which cars were stolen and credit cards were obtained and used. One credit card was used to obtain more than $100,000 in goods and services. The card was used to support lifestyle and for obtaining goods which could be sold to support the joint drug habit and drug taking.
On the plea it was put that the appellant remained high on drugs during the whole period of the offending. Of course, he is legally responsible only for $24,000 of the $100,000 obtained, as is set out in count 9. When the appellant was released on bail he entered the CREDIT bail support program, which he successfully completed. He completed the program in December 2006 and reports and certificates were tendered on the plea. At some stage in the past, while working as a builder's labourer, he suffered damage to his neck and spine and remedial operations have been necessary. Those medical procedures are ongoing. He continued on bail until January 2008, when he was arrested for similar matters. That offending arose when he recommenced a relationship with the co-accused, who had been in custody but was released in mid-2007. He had completed other courses while in custody and the relevant certificates were also tendered on the plea.
The appellant did plead guilty and has reasonable prospects of rehabilitation. Although he has a number of prior convictions, he appears to have maintained good behaviour between 2000 and 2006. He did get himself off heroin and made a partial recovery from his use of amphetamine and methylamphetamine. He is now 45 years of age. He has never been in prison previously. He was in custody between 20 July 2006 and 29 August 2008 and since 30 January 2008. He was given pre-sentence detention of 54 days between 19 July 2006 and 29 August 2006 and between 2 June 2009 and 13 June 2009. He would have been entitled to about four months between 30 January 2008 and 2 June 2008 by virtue of s 18 of the Sentencing Act 1991 if he had been doubly warranted, but he remained on bail in relation to these matters. He was thus entitled to have that time taken into account by virtue of the principles in R v Renzella[1]. That matter was conceded on appeal.
[1]
No additional matters were put on appeal, but the strong issue going to parity of sentence between the two offenders was emphasised by Mr Boyce. In the circumstances, the appellant falls to be re-sentenced. We have taken into account the fact that he was on remand from 30 January 2008 to 2 June 2008 and has not at any stage had that time taken into account. I would re-sentence the appellant as follows:
count 1 (theft of a number plate): one month; count 2 (theft of a motor car): six months; count 3 (theft of a motor car): six months; count 4 (theft of a number plate): one month; count 5 (obtaining financial advantage by deception): one month; count 6 (theft of a motor car): six months; count 7 (theft of a number plate): one month; count 9 (obtaining financial advantage by deception): two years; count 10 (dealing with proceeds of crime): one month; count 12 (obtaining financial advantage by deception): one year; count 13 (attempting to obtain financial advantage by deception): seven days; count 15 (possession of a drug of dependence): seven days. I would order, pursuant to s 89(4) of the Sentencing Act 1991, that the appellant's motor car licence be cancelled and that he be prohibited from obtaining a further licence for a period of three months. I would order that, in relation to counts 2, 3 and 6, one month of those sentences, and in relation to count 12, three months of that sentence be served cumulatively with each other and upon the sentence imposed in relation to count 9, giving a total effective sentence of two years and six months. I would order that the appellant serve one year and six months before being eligible for parole.
BUCHANAN JA:
I agree.
VINCENT JA:
I also agree.
BUCHANAN JA:
The orders of the Court will be as follows:
The appeal is allowed.
The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of one month on counts 1, 4, 5, 7 and 10, for a term of six months on counts 2, 3 and 6, for a term of two years on count 9, for a term of one year on count 12, and for a term of seven days on counts 13 and 15.
It is ordered that one month of each sentence on counts 2, 3 and 6 and three months of the sentence on count 12 be cumulated upon each other and upon the sentence on count 9.
The total effective sentence is two years and six months' imprisonment.
It is ordered that the appellant serve a minimum term of one year and six months' imprisonment before he is to be eligible for parole.
It is ordered that the appellant's motor car licence be cancelled and he be prohibited from obtaining a further licence for a period of three months.
It is declared that a period of 424 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
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