R v King
[2006] VSCA 76
•22 March 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 136 of 2005
| THE QUEEN |
| v. |
| BRETT DANIEL KING |
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JUDGES: | CALLAWAY, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 March 2006 | |
DATE OF JUDGMENT: | 22 March 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 76 | |
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Criminal law – Sentencing – Burglaries and handling stolen property over a period of 14 months – Rolled up count of theft arising from 11 burglaries – Value of goods taken over $100,000 – Offender serving balance of earlier sentences whilst on remand – Non-parole period 75 per cent of head sentence – Offender with serious criminal history – Non-parole period not manifestly excessive in the circumstances – Sentence of three years and six months’ imprisonment on rolled up count not manifestly excessive – Parity, totality principles not breached – Appeal against total effective sentence of five years’ imprisonment with a non-parole period of three years and nine months dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr T. Kassimatis | Matthew White & Associates |
CALLAWAY, J.A.:
I invite Chernov, J.A. to deliver the first judgment.
CHERNOV, J.A.:
On 15 April 2005 the appellant, Brett Daniel King, who is aged 30 years, pleaded guilty in the County Court at Melbourne to a presentment alleging 11 counts of burglary, seven counts of handling stolen property and one (rolled up) count of theft (arising from the 11 burglaries), committed over a period of approximately 14 months between July 2002 and September 2003. The value of the goods that were the subject of the rolled up theft count - count 19 - was over $100,000 and the value of the property that was the subject of the handling counts was approximately $57,000. The maximum custodial sentences for each of the offences of burglary and theft was 10 years and for handling stolen property, 15 years. The appellant admitted 63 prior convictions from 13 court appearances including theft, burglary, dishonesty offences and failing to answer bail. After hearing a plea in mitigation made on his behalf, on 29 April 2005, the learned sentencing judge sentenced the appellant, to be imprisoned for a term of 18 months in respect of each of the burglary and handling counts and to three years and six months in respect of count 19. His Honour ordered that one month of each of the sentences imposed on the burglary and handling counts be served cumulatively upon the sentence imposed on count 19, thereby making a total effective sentence of five years’ imprisonment. His Honour fixed a non-parole period of three years and nine months.
On 14 October 2005 a judge of this Court granted the appellant leave to appeal against the sentence pursuant to s.582 of the Crimes Act 1958. Before dealing with the appellant's grounds of appeal, it is necessary to set out briefly the circumstances of the offending. The appellant's modus operandi in relation to the burglary offences was that, in company with a co-offender who was a “lookout”,[1] he drove to selected commercial premises, usually warehouses or offices, for the purpose of gaining unlawful entry to them and stealing items of equipment. The entry was usually effected by the appellant throwing a rock through a window of the premises. After entry, he stole equipment that was of considerable value, such as televisions, lap top computers, cameras and projectors. Very shortly after each such offence, the appellant sold nearly all of the stolen equipment pursuant to an agreement that was usually made before the burglary. The appellant paid his “lookout”, Davis, $50 in respect of each burglary that he attended. The appellant was arrested in respect of the offences on 29 October 2003 and, during his interview by the police, made “no comment” responses.
[1]In respect of ten of the burglaries, the “lookout” was Jamie Lee Davis (“Davis”) and in respect of the eleventh burglary it was Marissa Furlong (“Furlong”).
The appellant was charged with a series of offences arising essentially out of the conduct that has been described and, after a two-day contested committal proceeding, in July 2004, he was committed for trial in the County Court. The Crown filed a 70-count presentment and, on 14 April 2005, the appellant appeared in the County Court where the matter was due to commence by way of a trial. After discussions between the parties, on 15 April 2005, the Crown filed over, by leave, a 19-count presentment to which the appellant pleaded guilty as has been indicated and was sentenced accordingly.
Mr Kassimatis, for the appellant, confined his attack on the judge’s sentencing discretion to the following grounds: first, the non-parole period is manifestly excessive, secondly, the sentence imposed on count 19 is manifestly excessive and thirdly, the head sentence offends the principles of parity and totality. In support of the first ground, counsel argued that the appellant, who had been on remand since 29 October 2003, was required during that period to serve the balance of a suspended sentence and of a combined custody and treatment order and, therefore, only 313 days of his remand could be treated as pre-sentence detention for the purposes of s.18(1) of the Sentencing Act 1991. It followed, counsel said, that his first release date will be 17 March 2008 and the sentence will expire on 17 June 2009, which in turn means that the appellant's effective minimum period in custody will be four years and four months and the maximum total sentence will be five years and seven months. In the circumstances, it was said, the non-parole period, that is over 75 per cent of the head sentence, is plainly excessive, particularly given the appellant’s young years, his progress towards rehabilitation and his need for supervision during a relatively lengthy parole period. It was pointed out by counsel that this was the first occasion on which the appellant was sentenced to an immediate custodial period with a non-parole period.
The principles applicable to the determination of a non-parole period have recently been summarised by Callaway, J.A. in DPP v. Josefski[2] and there is no need to repeat them here. The real question is whether it was open to his Honour to consider, as he clearly did, that the non-parole period fixed by him was the minimum period that justice required the appellant to serve in all the circumstances of the case.
[2][2005] VSCA 265.
I consider that it was open to his Honour to come to that conclusion having regard to the following matters. First, the non-parole period contains a punitive element and it must be borne in mind that the offending in this case was serious and was committed over a considerable period. Secondly, his Honour was justified in having doubts as to the appellant’s prospects of rehabilitation. Next, the appellant has a serious criminal history and has frequently abused the leniency that the courts have extended to him. The latter is amply demonstrated by the fact that, as Mrs Quin, for the respondent, has pointed out, notwithstanding the many offences that he had committed over the years, this is the first occasion on which he has been sentenced to an immediate custodial sentence with a non-parole period. It is apparent that, in considering the sentencing disposition, his Honour took into account the limited pre-sentence detention period that was available to the appellant and the fact that he had served approximately 18 months on remand. It seems to me also apparent that his Honour was aware of the fact that the appellant's earliest release date will be 17 March 2008.
It was said by counsel that, since his imprisonment, the appellant has developed a motive to rehabilitate himself given his strong desire to care for his daughter upon his release. Although his Honour was told of the appellant's motive in that regard and had before him a certificate demonstrating that the appellant had completed whilst in prison a course that was concerned with parenting, his Honour was entitled to take into account the fact that there was no material showing that, during his period as a professional thief and drug user, the appellant had developed any sort of relationship with his daughter.
In the circumstances, I consider that the learned sentencing judge made no error of principle in determining the non-parole period and it is not of such duration as to be plainly excessive.
Mr Kassimatis then submitted that the sentence imposed on count 19 - the rolled up count - is manifestly excessive. As counsel acknowledged, whether that is the case does not admit of much debate. I consider that the impugned sentence is not beyond the relevant range essentially for the following reasons. First, the count reflects 11 thefts committed by the appellant over a considerable period of time[3] which resulted in his amassing property of considerable value. Secondly, the offence is plainly a serious one and the offending was also very serious. The crimes were planned and carried out so as to minimise the risk of the appellant being apprehended and to ensure a speedy conversion of the stolen property into money. Moreover, as I have noted, it was carried out over a considerable period of time in the course of which the appellant stole property for which the owners paid a large amount of money. Moreover, it is plain that special and general deterrence were important considerations in the sentencing disposition. In the light of these matters, and notwithstanding the personal circumstances of the appellant and the other mitigating factors that apply, I consider that it cannot be sensibly said that the impugned sentence on count 19 is outside the relevant range.
[3]R. v. Jones [2004] VSCA 68.
As to the appellant's case based on breach of parity, it was first said that his Honour did not sufficiently address the issue of parity in his sentencing remarks. I think this claim should be rejected. It is obvious from the sentencing remarks that his Honour turned his mind to the matter, saying that it was appropriate that the co-offenders had received significantly lower sentences than that which his Honour went on to impose in relation to the appellant. The learned sentencing judge was also aware that different circumstances applied to the other two co-offenders, referring throughout his sentencing remarks to the different circumstances pertaining to the co-offenders. In relation to Davis, for example, his Honour specifically noted that he was much younger than the appellant.
Secondly, it was said, given that the sentence imposed on the appellant was a term of imprisonment and that the co-offenders “escaped immediate loss of liberty”, the appellant was entitled to a legitimate sense of grievance at his term of imprisonment. Hung The Diep, to whom the appellant sold stolen property, and Davis were sentenced in the Magistrates' Court, Diep to eight months’ imprisonment and Davis to four months’ imprisonment, each to be served by way of an intensive correction order. Furlong pleaded guilty in the County Court to charges that reflected the last two of the above burglary and theft counts and she was sentenced to 18 months’ imprisonment on each of the counts, to be served concurrently, and the sentence was wholly suspended for two years.
The test for determining whether the disparity engenders a justifiable sense of grievance in the offender is an objective one and, it is plain enough, before an appellate court can relevantly intervene on the basis of disparity between the sentences of co-offenders, the disparity must be “marked” or “manifest” and be such as to produce a legitimate and justified sense of grievance in the objective observer.[4] Thus, “where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for”.[5]
[4]See R. v. Taudevin [1996] 2 V.R. 402 at 404 per Callaway, J.A., and R. v. Mercieca [2004] VSCA 170 at [17] per Winneke, P.
[5]Lowe v. The Queen (1984) 154 C.L.R. 606 at 623 per Dawson, J. See also R. v. O'Brien and Gloster [1997] 2 V.R. 714 at 722 per Charles, J.A.
It was argued for the appellant that there was not sufficient disparity between the circumstances pertaining to the appellant and those that were applicable to the co-offenders to justify the disparity in the sentences. Thus, counsel pointed to the fact that Davis had a significant prior criminal history and that he was sentenced for more burglaries than the appellant. Similarly, it was said that Furlong was older than the appellant and had over 200 prior convictions.
It seems plain enough that, as the schedule attached to the Crown's Summary of Evidence makes apparent, the difference between the circumstances of the appellant and the co-offenders are so substantial that it cannot be said that the appellant is entitled to a legitimate sense of grievance at his sentence when that is compared with those of the co-offenders. It is sufficient, for present purposes, only to note that Davis was, as has been noted, considerably younger than the appellant and that he and Furlong gave evidence against the appellant at his committal and were prepared to give evidence at his trial. Diep had no prior convictions.
I also consider that, given the seriousness of the offences and of the offending the head sentence does not offend the principle of totality.
In the circumstances, I would reject the claim that the sentences offend the principle of parity.
It follows that I would dismiss the appeal.
CALLAWAY, J.A.:
I agree.
VINCENT, J.A.:
I agree.
CALLAWAY, J.A.:
The order of the Court is:
Appeal dismissed.
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