R v Mladenov
[2006] VSCA 246
•16 November 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 80 of 2006
| THE QUEEN |
| v. |
| ELVIS RISTO MLADENOV |
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JUDGES: | ASHLEY, J.A. and SMITH and KING, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 November 2006 | |
DATE OF JUDGMENT: | 16 November 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 246 | |
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Criminal law – Sentence – Multiple counts of theft - Two tier approach – Cumulation –Conceded sentencing error – Appellant re-sentenced
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Ms F.L. Dalziel | Revill & Papa Lawyers |
ASHLEY, J.A.:
I will ask King, A.J.A. to give the first judgment.
KING, A.J.A.:
The applicant, Elvis Risto Mladenov, appeals against a sentence imposed by the County Court at Melbourne on 22 March 2006 on two presentments,
• first, presentment C0203074.4 and,
• second, presentment number Q02512742.6.
In relation to both presentments the applicant was sentenced to a total of five-and-a-half years' imprisonment with a minimum of four years.
The first presentment contained 14 counts of theft and 11 counts of handling stolen goods. There is some confusion, as will be seen, concerning the counts upon which the applicant went to trial, and in one respect the counts upon which he was sentenced. But it is at least clear that the applicant was convicted by a jury of 14 counts of theft, on each of which he received a sentence of five years' imprisonment; and that, save for cumulation of six months on one of those counts, all those sentences were directed to be served concurrently. It is also clear that on one count of handling stolen goods he was sentenced to four years' imprisonment, such sentence to be served concurrently with the sentences imposed on the theft counts. In relation to presentment Q02512742.6, the applicant pleaded guilty to 28 counts of theft and one count of possessing a drug of dependence. On the count of possession of a drug of dependence, he was sentenced to six months' imprisonment. He was sentenced to three years' imprisonment in respect of the theft on count 20, sentenced to four years' imprisonment in respect of the theft counts 6, 8, 14 and 25, and sentenced to three-and-a-half years' imprisonment on each of the other counts on the presentment, being counts 1, 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 21, 22, 23, 24, 26, 27 and 28. All sentences on that presentment were ordered to be served concurrently with each other and concurrently with all other sentences imposed that day, being the sentences imposed on presentment C0203074.4.
The grounds of the application are:
Ground 1 - the learned sentencing judge erred in his approach to sentencing in that he:
(a)engaged in a "two-tiered" process of reasoning rather than an "instinctive synthesis" in respect to the discount for the pleas of guilty;
(b)failed to impose sentences tailored to each count and make fitting orders for cumulation to achieve an appropriate overall sentence.
Ground 2 - the learned sentencing judge erred by not setting a new single non-parole period in respect to all the sentences the applicant is to serve.
By written submissions on behalf of the respondent, counsel conceded that Grounds 1(a) and 1(b) had been made out in the following terms:
"(1)The respondent concedes that Ground 1(a) insofar as it applies to presentment C0203074.6 represents sentencing error, opening up the sentencing discretion for re-exercise in this Court. While the two-tiered approach was also used on presentment C0203074.4, it had no effect on the sentence imposed because the judge had mistakenly sentenced on Counts 2, 4, 6, 9, 17, 19, 23 and 25 and withdrew them from the sentence at pages 6 to 7 of the sentencing reasons.
(2)The respondent concedes that Ground 1(b) is made out for both presentments and represents sentencing error which opens up the sentencing discretion.
(3)The respondent, however, contends that in the circumstances of this applicant the total effective sentence and non-parole period imposed were clearly within the range and should be reimposed."
There is no problem understanding the counts upon which the applicant was sentenced on the second presentment. But, as I said a moment ago, there appears to be some confusion as to exactly which counts the applicant pleaded guilty in relation to the first presentment, upon which counts he was convicted, and as to the counts upon which he was sentenced. The summary of proceedings filed in this matter, at paragraph 3, states:
"On 22 April 2005 at the County Court at Melbourne the applicant was arraigned and the trial commenced before his Honour Judge Gebhardt on presentment number C0203074.4 preferring the following counts to which the applicant pleaded not guilty:
•14 counts of theft: Counts 1, 3, 5, 7, 8, 10, 12, 14, 16, 18, 20, 21, 22 and 24.
•11 counts of handling stolen goods: Counts 2, 4, 9, 11, 13, 15, 17, 19, 23 and 25.
The applicant pleaded guilty to one count: Count 6 (handling stolen goods)."
That appears to be erroneous. A copy presentment was noted by the judge's associate this way:
"22 April 2005 - Accused arraigned and pleads guilty to seven counts of handling stolen goods - Counts 2, 4, 9, 17, 19, 23 and 25 and pleads not guilty to 14 counts of theft - Counts 1, 3, 5, 7, 8, 10, 12, 14, 16, 18, 20, 21, 22 and 24 and pleads not guilty to four counts of handling stolen goods - Counts 6, 11, 13, and 15."
The copy presentment, consistently with the note that I have mentioned, was further endorsed as follows:
"5 May 2005 - trial continues his Honour charges jury. Jury retires to consider verdict. Verdict guilty on 14 counts of theft - Counts 1, 3, 5, 7, 8, 10, 12, 14, 16, 18, 20, 21, 22 and 24. Guilty on one count of handling stolen goods - Count 6. Remanded in custody, adjourned to a date to be fixed."
His Honour, during the imposition of the sentence, at page 3 of the sentencing remarks, purported to convict and sentence the applicant on Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25. Subsequent to his Honour pronouncing the sentences, the prosecutor informed his Honour that some of the counts were handling counts on which he had sentenced the applicant. The prosecutor informed his Honour that those counts had been presented as alternatives to the theft counts of which he had now been convicted. The Crown had at the time of trial refused to accept the pleas as arraigned on the handling charges. Accordingly, his Honour then purported to recall the conviction and sentence upon Counts 2, 4, 6, 9, 17, 19, 23 and 25.
Further complicating the matter, examination of the "Return of Prisoners Convicted" form in respect of the applicant, Elvis Risto Mladenov, in relation to presentment number C0203074.4, reveals, inter alia, a conviction recorded and a sentence imposed in respect of Count 2, but not in respect of Count 6 – on the latter of which, on one view, he had been convicted.
An examination of the presentment and the particulars of the offence indicates that Count 6 was a handling charge in relation to the same goods that comprised Count 5 on that presentment - a count of theft in respect of which the jury found the applicant guilty. That would explain his Honour's purported recall of conviction and sentence on Count 6, and the prisoner's return form. On the other hand, Count 1 on the presentment was a count of theft in relation to a laptop computer, two credit cards and a quantity of cash, whilst Count 2 was a handling charge in relation to an Xbox console, an Xbox game and a DVD. They do not seem to be alternatives, and it is difficult to see why his Honour should have recalled the conviction and sentence on count 2.
The situation in respect of the first presentment is left very unsatisfactory. I think that the best course is to act on the basis of the convictions as recorded in the "Return of Prisoners Convicted" form - that is, that the applicant was sentenced in respect of 14 counts of theft upon which he was convicted by a jury, and in respect of one count, Count 2, of handling stolen goods.
As a result of the errors demonstrated in his Honour's sentencing remarks and the entirely appropriate concession made by the respondent, the application should be granted, the appeal allowed, and the applicant re-sentenced by this Court.
The applicant is now a 32-year-old man who was born on 11 September 1974. At the time of the offences he would have been aged 28 years. His offending in respect of the 14 counts of theft on the first presentment ranged over the period March 2002 to July 2002. The offences in respect of the second presentment ranged from November 2001 through to the same time, July 2002, at which time the applicant was arrested.
The circumstances of the offending were that in July of 2002 the applicant, together with a co-offender, one Zoran Stavreski, was arrested by police in the car park of Crown Casino. They had been observed by security staff of the casino loitering in the car park trying door handles of various cars. The applicant's car was found in the near vicinity. A search of that vehicle revealed a laptop computer, which had been stolen from a car parked at the casino on the previous day. The police also located a number of mobile telephones along with a handmade metal tool which was used to gain entry to locked vehicles. Both the applicant's home and that of Mr Stavreski were searched, and an amount of property was recovered from the applicant's premises.
There was one offence that did not occur at the Crown car park, but occurred at the Highpoint West Shopping Centre in Maribyrnong. Such theft related to three luggage bags from a car belonging to a jewellery company representative. The value of the jewellery items stolen was approximately $100,000. That offence occurred on 29 June, and despite the large amount of jewellery stolen, the thefts continued unabated until the applicant was arrested.
Further enquiries over a period of time revealed numerous other thefts from vehicles at Crown Casino. The type of items taken by the applicant and co-offender were palm pilots, laptop computers, golf clubs, sunglasses, CD's, Xbox consoles, wallets, cash, credit cards, tools and assorted items of jewellery and equipment. Further search warrants were subsequently obtained, the applicant's premises were searched, and a large amount of property suspected of being stolen was located. That is the property which related ultimately to both of these presentments.
So much for the offences themselves. I next note that the applicant was a man with a relevant history of past offending. Between May 1993 and March 2002 the applicant had 17 court appearances, eight of which related to dishonesty offences and the balance to motor vehicle offences. The applicant was sentenced to fines, community-based orders (one of which he completed, and one he breached), and suspended terms of imprisonment (one which he completed, and one which he breached on two separate occasions).
I have mentioned that there was a co-offender, Stavreski. He is now aged 28 years, and was approximately 24-25 at the time of the offending. He pleaded guilty to 17 offences, and was sentenced to a total effective sentence of five years with a non-parole period of three years by the judge who also sentenced the applicant. He appealed.[1] In allowing the appeal and re-sentencing him to a total effective sentence of 20 months' imprisonment with a non-parole period of 12 months, Buchanan, J.A., with whom Vincent and Nettle, JJ.A. agreed, accepted the accuracy of the sentencing judge's characterisation of the present applicant as "the leader of this little gang". The roles of Stavreski and the applicant in the offending were thus different. Further, there was a substantial difference in the number of charges which they respectively faced, and Stavreski pleaded guilty to all offences while the applicant stood his trial in respect of a considerable number of the counts brought against him. Again, their history of past offending was different, the applicant's being the more extensive. Still further, there was evidence that Stavreski had considerable personal support, thus making him a very good candidate for rehabilitation. There is, in the event, room for a considerable difference in the total effective sentences and the non-parole periods imposed upon the applicant and Stavreski, though recognising that the individual sentences imposed upon Stavreski are of relevance to the individual sentences imposed upon the applicant.
[1]R. v. Stavreski [2006] VSCA 157.
In re-sentencing the applicant, his personal circumstances must be brought to account. He was born in Dandenong and grew up in St Albans, one of two children (his brother works as a security officer at the casino). His father and mother are both still alive, are aged in their fifties, and are divorced. He has a continuing good relationship with his parents. He has not suffered any serious illness. He attended St Albans Primary School, followed by Jamieson Park Secondary School, where he completed Year 11, finishing at the age of 17. He left school because he had a preference to work. He was apparently an average student, with no behavioural problems or health problems whilst growing up. He claimed, when speaking to a reporting physician, to have had no drug or alcohol addiction problems, although that does not mean that alcohol and drugs have not been the source of some problems in his life. His employment revolved around motor cars and motorbikes, working for different motor companies and also doing work, although unqualified, at his own premises. He was not imprisoned, in respect of other criminal conduct, until a sentence of nine months' imprisonment, relating to fraudulent behaviour, was imposed in 2002. That is of course a subsequent matter, and not something which is relevant when looking at his prior offending, but relevant to his current position.
The learned sentencing judge sought a pre-sentence psychiatric report. The report, compiled by Dr Senadipathy, stated that -
"Apart from the anxiety about being in the prison there was no evidence of mental illness. Therefore his mental illness cannot be considered a factor contributing to his alleged criminal activities. Similarly, mental health is not a factor relevant to sentencing."
The learned sentencing judge heard the trial in this matter as well as the plea, and I see no reason not to act upon the following sentencing remarks, which bear at least upon the issues of insight (and thus rehabilitation) and remorse:
"Upon trial you chose, as is your right, to give evidence upon oath. Either you do not understand an oath or you have led a life so far distant from the truth that you would not know it if you fell over it. Reality is equally distant from your world. Having been armed with your implement of entry into cars you said that you were 'relieving yourself'. Highly imaginative. Further evidence was led ... from the informant which indicates that you were the leader of this little gang."
His Honour continued his sentencing remarks with this assessment of the applicant's behaviour and consequences:
"Upon your plea the Crown Prosecutor ... correctly summarised your behaviour as repetitive. Your counsel described it as systematic and premeditated. ... No doubt you had skills, it is unfortunate that you chose to use them to illegal purposes. In many ways your continuing to offend is adolescent. You have absolutely no regard for consequences, the cost to the community, the cost to insurers, the cost to the police force. "
But there was also some explanation, though not excuse, for the applicant's offending. Reports tendered to the learned sentencing judge included the report of Warren Simmons, psychologist. He reported, inter alia, that -
"At the age of 24, Mr Mladenov said that he began taking ecstasy on the weekends, adding that he usually obtained it in powder form and he would use between one to two grams over the weekend. He said that this pattern of substance abuse continued until he met his current partner and was a regular weekend habit. He said that he was also ingesting one to two grams of amphetamines on the weekend, using the drug primarily so that he could stay awake over the period of the weekend. He went on to indicate that his use of both of these drugs varied and was dependent on the numerous factors including availability and what activities he was undergoing on the weekend."
In relation to the reasons for offending, Mr Simmons reported that -
"Mr Mladenov estimated that he spent some $10,000 on the drugs over the period when he commenced his drug use until the end of his offending period. He indicated that a great deal of the money was spent to fund his substance use. However he asserted that the remainder of the money and the various stolen items he had in his possession boosted his self esteem, adding that he felt the degree of emotional satisfaction from the acquisition of these goods."
Another matter that should be mentioned is delay in sentencing. The applicant was arraigned on the first presentment on 22 April 2005. The jury's guilty verdict was returned on 5 May. The plea hearing began on 15 July, and concluded that day. The judge ordered a pre-sentence report and remanded the applicant in custody for sentencing on 28 November. On that day, the second presentment was filed. The applicant pleaded guilty to all counts, and he was remanded in custody for sentence to a date to be fixed. Stavreski was sentenced on 15 December 2005. The applicant, however, was not sentenced until 22 March this year. Through no fault of his own, he was more than ten months in custody after the jury's verdict before sentence was passed upon him.
Taking into account all of the factors to which I have referred, and accepting that the applicant is not without some prospects for rehabilitation having regard to the support of his family and current girlfriend, and having regard also to his not offending in a period when on bail or parole between the time of arrest and his sentence. I would sentence him in the following manner. In doing so, I would act upon the submissions of both counsel, relying upon the common ground between the parties as to the applicability of s. 11(2) and s. 11(4) of the Sentencing Act.
On Presentment C0203074.4
Count 18 - to be imprisoned for a period of 20 months.
Counts 1, 3, 5, 7, 8, 10, 12, 14, 16, 20, 21, 22 and 24 - to be imprisoned for a period of 15 months on each count.
Count 2 - to be imprisoned for a period of 12 months.
I would make Count 18 the base count and I would cumulate four months of the sentences imposed on each of Counts 1, 8, 22 and 24 upon Count 18 and upon each other. I would cumulate one month of the sentence imposed on Count 2 on the sentence imposed on Counts 18, 1, 8, 22 and 24, creating a cumulation in respect of this presentment of 37 months' imprisonment.
On Presentment Q02512472.6
I would impose a sentence of 12 months on each of Counts 1 - 28. On Count 29 I would impose a sentence of three months' imprisonment.
I would make Count 1 the base count and I would cumulate three months of the sentences imposed on Counts 6, 9, 14, 18, 25 and 28 on each other and on Count 1, creating a cumulation in respect of this presentment of 30 months' imprisonment.
I would direct that 12 months of the cumulation on presentment Q02512742.6 be cumulated upon the 37 months imposed on presentment C0203074.4, making a total effective sentence on both presentments of 49 months.
I would fix a non-parole period of 30 months.
I would make the appropriate declaration with respect to pre-sentence detention.
ASHLEY, J.A.:
I agree, for the reasons which her Honour has given, in the disposition of this application as proposed by King, A.J.A.
SMITH, A.J.A.:
I also agree.
ASHLEY, J.A.:
The orders of the Court are these:
1. The application for leave to appeal against sentence is granted.
2. The application is heard instanter and allowed.
3.The sentences passed on the applicant on Presentments C0203074.4 and Q02512472.6 are set aside.
4. In lieu thereof the applicant is sentenced as follows:
On Presentment C0203074.4 -
on count 18 to be imprisoned for a period of 20 months;
on counts 1, 3, 5, 7, 8, 10, 12, 14, 16, 20, 21, 22 and 24 to be imprisoned in each instance for a period of 15 months;
on count 2 to be imprisoned for a period of 12 months.
Making the sentence on count 18 the base sentence, cumulate four months of the sentences imposed on each of counts 1, 8, 22 and 24 upon each other and upon count 18; cumulate one month of the sentence imposed upon count 2 on the sentence imposed on counts 18, 1, 8, 22 and 24, this creating a cumulation in respect of this presentment of 37 months' imprisonment.
On Presentment Q02512472.6 -
on each of counts 1 to 28, to be imprisoned for a period of 12 months;
on count 29, to be imprisoned for a period of three months.
Making the sentence on count 1 the base sentence, cumulate three months of the sentences imposed on counts 6, 9, 14, 18, 25 and 28 on each other and on count 1, creating a cumulation in respect of this presentment of 30 months' imprisonment.
Direct that 12 months of the cumulation on this presentment be cumulated on the 37 months' imprisonment imposed on Presentment C0203074.4, this making a total effective sentence on both presentments of 49 months.
Fix a non-parole period of 30 months.
Declare that a period of 666 days of the sentence has already been served and order that the fact that this declaration has been made and its details be entered in the records of the Court.
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