R v Mouzomenos

[2005] NSWCCA 203

CITATION:	Regina v Mouzomenos [2005] NSWCCA 203
HEARING DATE(S):	30/05/05
JUDGMENT DATE:	17 June 2005
JUDGMENT OF:	Simpson J at 1; Barr J at 2; Latham J at 3
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed

CATCHWORDS:	CRIMINAL LAW - Appeal against severity of sentence - parity
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Pangallo (1991) 56 A Crim R 441
PARTIES:	Crown - Respondent Michael Mouzomenos - Applicant
FILE NUMBER(S):	CCA 2005/343
COUNSEL:	Ms J Girdham - Respondent Crown Mr F Santisi - Applicant
SOLICITORS:	S Kavanagh - Respondent Crown J Nicopoulos - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1128
LOWER COURT JUDICIAL OFFICER:	Woods DCJ

2005/343

SIMPSON J
BARR J
LATHAM J

17 June 2005

REGINA v MICHAEL MOUZOMENOS

Judgment

1 SIMPSON J: I agree with Latham J.

2 BARR J: I agree with Latham J

3 LATHAM J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 6 August 2004. The applicant first pleaded guilty in the District Court to one count of break enter and steal, pursuant to s 112(1) of the Crimes Act. The offence carries a maximum penalty of fourteen years imprisonment. The applicant received a sentence of two years imprisonment to date from 6 August 2004 with a non parole period of fifteen months expiring on 5 November 2005.

4 The facts which were tendered as part of the Crown brief on sentence are as follows. At about 8:00pm on Thursday 14 March 2002, the young female victim was alone at her home address in Penshurst. There was a knock at her front door and, on enquiring who was there, the applicant replied “its me”.

5 The victim looked through a peep hole in the door and was unable to see any person. She then opened the door and saw the applicant in company with another male.

6 The victim immediately shut the door, after seeing the applicant and the other male, because she was fearful of her safety. There had been a previous encounter between the victim and the applicant which resulted in the victim excluding the applicant from her home.

7 Shortly thereafter, one of the two males kicked the front door open, breaking it at the frame. The applicant and the other male entered the unit. The applicant said, “where is your laptop”. The applicant then went to the victim’s bedroom whilst the other male stayed with the victim in the lounge room. The applicant proceeded to search the victim’s bedroom and the lounge room. On a number of occasions the applicant asked for the victim’s laptop.

8 The victim grabbed her mobile phone and ran from the unit on to Forest Road. She was able to flag down a passing motorist. As she was being driven by the motorist in the direction of Hurstville Police Station, the victim saw a green motor vehicle, at the side of Forest Road. At the time the applicant was standing at the rear of this vehicle placing something into it.

9 The victim also identified a co-offender by the name of Georgiadis, who was known to her, as the driver of the vehicle. At that time, the applicant was seated in the front passenger seat of the vehicle and the other male was in the rear of the vehicle.

10 The victim noted the registration number of the vehicle and reported the incident at Hurstville Police Station. On returning to her unit, she identified a quantity of property missing, namely one Sanyo brand stereo with speakers and her handbag containing a watch, personal cards and a quantity of cash.

11 On Thursday 16 March 2002, police attended the address of the co-offender, Georgiadis, and searched the green motor vehicle, registered to the co-offender’s father. The victim’s handbag was found in the rear of that vehicle.

12 The applicant was arrested on Friday 15 March 2002 and taken to Hurstville Police Station, where he participated in a record of interview. The applicant denied any knowledge of the incident and stated that he had never been to Penshurst. He also stated that he did not know the victim. He told police that he did not go out on the evening of 14 March 2002. The applicant was charged on that day with one count of aggravated break enter and steal carrying a maximum penalty of twenty years imprisonment.

13 The history of the proceedings bears considerable relevance to this appeal. The co-offender, Pantelis Georgiadis, pleaded guilty at the Local Court to aggravated break enter and steal (that is being in company with the applicant) and was sentenced by His Honour Judge Woods QC on 20 December 2002. At that time, His Honour noted that the co-offender had “made full and extensive admissions to police” the morning after his arrest. Some further reference to the remarks on sentence of his Honour on that occasion appear below in the context of ground one of the applicant’s grounds of appeal.

14 The applicant pleaded guilty for the first time on 24 March 2003 at the District Court to an alternative count which was made available on indictment on that occasion. A pre-sentence report was requested and the matter was stood over to 23 May 2003. On 23 May a transcript of the sentence of Georgiadis was not available. The matter was then stood over to 10 July 2003. On that day the matter was adjourned by the applicant’s legal representative in order that they might obtain a psychologist’s report. The matter was next listed for 12 September 2003.

15 On 12 September the matter was again adjourned on the application of the applicant’s legal representative, ostensibly on the basis that the applicant was prepared to offer assistance. The matter was stood over to 17 October 2003.

16 Between 17 October 2003 and 4 June 2004 the matter was before the District Court on no fewer than six occasions. On each of those occasions, with the exception of 4 June 2004, the applicant’s legal representative sought adjournments on the basis that the foreshadowed assistance had not materialised.

17 On 4 June 2004 yet another application for an adjournment was made by the applicant’s legal representative. The Court was told that the applicant had conducted an interview with police on 3 June, that is the preceding day, and that the matter was to be adjourned to allow the transcript of that interview to be taken out.

18 On 23 July 2004 His Honour was informed by the applicant’s solicitor (who was present at the applicant’s interview of 3 June 2004, when the applicant was given a copy of the tape recording of the interview) that the transcript of the interview was still not available, and that a further adjournment was being sought on the applicant’s behalf. It was the submission of the applicant’s solicitor :

That the accused has given assistance to the police. Now the erisp is not before or has not been provided at this stage, although a tape of the erisp was given to the accused on the date that the erisp was taken, namely 3 June 2004. It is the defence’s submission that the erisp identifies a primary offender that was involved in respect of this particular matter.

19 The Crown was in possession of a summary of the interview of 3 June. The applicant’s legal representative objected to the summary of the interview being placed before the Court. It was, however, tendered in the proceedings on sentence on behalf of the applicant and became an exhibit in those proceedings. A perusal of that exhibit indicates why it was that the applicant’s solicitor was reluctant for His Honour to see the document on 23 July. The summary taken out by the detective in charge of the matter contains the following comment:

Nicopoulos (the applicant’s solicitor) has asked about an affidavit of assistance. Based on this version I’m not prepared to give him one.

20 In these circumstances, it is not surprising that his Honour expressed some frustration in the following terms:

This matter has been before the Court on repeated occasions and the Court’s processes are being trifled with.

21 The matter was then put over to 28 July for sentence, on which date the applicant’s Counsel was unavailable.

22 On 6 August 2004, the matter finally proceeded to sentence. The Crown brief was tendered containing a copy of the Indictment, a Statement of Facts, the applicant’s criminal history, three statements from the victim, a number of statements from police officers and the father of the co-offender Georgiadis, a transcript of the interview conducted with the applicant at the time of his arrest, and a pre-sentence report dated 30 April 2003. Also tendered were remarks on sentence delivered in respect of the co-offender, the facts presented to the Court in relation to that sentence, and the criminal history of the co-offender.

23 The bulk of the proceedings on 6 August 2004 consisted of evidence from the victim, who was cross-examined, and evidence from the applicant who was also cross-examined at length. It is not necessary for the purposes of this appeal to canvass that evidence at any length. It is sufficient to observe that the applicant’s account completely traversed the facts according to the Crown case. In short, the applicant claimed that he had gone to the front door of the premises with another male while Georgiadis remained in the car, that without warning the other male had kicked open the front door, that he (the applicant) had entered and enquired after the victim’s welfare and had remained standing in the living room in a state of shock, while the other male took items from the other rooms. He denied carrying any of those items to the car.

24 Not surprisingly in my view, His Honour found that “the version given by the [applicant] … [was] false at all points where it conflicts with the evidence of [the victim].” (R/S p 3).

25 His Honour went on to note that the applicant had agreed that the interview with police on 15 March 2002 was “a pack of lies”. Nonetheless His Honour was mindful of the possibility that an offender’s false account to police may be subsequently retracted in favour of an honest account to a court. Ultimately, His Honour was satisfied that the applicant had simply substituted a further false account for the lies told to the police.

26 Against this background, it is convenient to deal briefly with grounds 3 and 4 of the appeal. These grounds claim that the Judge’s findings of fact as to the applicant’s role in the offence and the degree of planning are not supported by the evidence.

27 Turning firstly to the degree of planning, His Honour found that “the offence was committed in the form of a joint criminal enterprise and although it was planned, …. It is unlikely that it was planned terribly long before the event” (R/S p 6).

28 The written submissions, filed on the applicant’s behalf include the following:

What is challenged is that there was in any way, no matter how short, a planning of the offence as charged, but rather what occurred was an unexpected break and enter for which the applicant accepts criminal responsibility by reason of his presence. (par 5).

29 At par 7 of the written submissions, the following appears under the heading “-Facts”:-

On 14 March 2002 there was discussions (sic) as between the three co-offenders of attending on the victim for the purpose of demanding repayment of money from her. Such discussions were not long before the actual attendance. Such discussions did not involve any discussion as to an actual break and enter and of actual stealing of any properties of the type in fact stolen.

30 The latter paragraph was, at its highest, a summary of the applicant’s version given in evidence before the sentencing judge. His Honour found that the applicant had lied to the court. Accordingly, His Honour was entitled and indeed bound by fact-finding principles to examine the evidence on sentence in order to determine whether he was satisfied beyond reasonable doubt of those features of the offence which the applicant disputed, bearing in mind that he did not accept the applicant as a witness of truth.

31 Contained within the Crown brief, which was tendered without objection, was a statement of facts which was before His Honour when he came to sentence Mr Georgiadis in December 2002. It should be noted that Mr Georgiadis provided two interviews to police, one on the evening of 14 March 2002 and another more revealing interview on 15 March 2002.

32 In the interview of 15 March 2002, Mr Georgiadis stated that after collecting the applicant and another male in his father’s car, there was a conversation among the three of them regarding stealing from the victim so that drugs could be purchased. Whilst that conversation may have centred on stealing money, it matters not for present purposes that the offenders ultimately came away with a small amount of cash and a stereo. Mr Georgiadis then drove to the victim’s premises and waited in the car while the applicant and the other male went up the stairs and forced their way into the victim’s flat.

33 These features of the interview on 15 March 2002 were set out in the statement of facts relating to Mr Georgiadis. In these circumstances, it cannot be maintained that His Honour’s finding on the issue of the degree of planning was not supported by the evidence.

34 The same rationale applies to the applicant’s complaint that His Honour erred in attributing to the applicant an active role in the commission of the offence. Specifically, His Honour rejected the applicant’s evidence “that he did not seek the laptop immediately he went in, and … that he did not start looking around the flat for various items of property which were, in fact, stolen.” (R/S p 3). Having rejected the applicant’s evidence, His Honour had proper regard to the victim’s evidence, which in every critical respect was entirely consistent with the statement of facts in respect of this applicant.

35 Some mileage was sought to be made on the hearing of the appeal from the brief period of time during which the victim was in the premises before fleeing down the stairs. In effect, the submission was that the victim could not have made the observations she said she made within the course of a minute, a time span estimated by her during cross-examination by the applicant’s counsel. That submission was made to His Honour below. Obviously, the victim’s reliability in assessing the passage of time almost two and a half years after the event did not trouble His Honour when he came to make the findings of fact at issue here. I can see no reason why it should have troubled His Honour.

36 There is no substance to grounds 3 and 4 of the appeal.

37 Ground 2 as filed, asserts error by His Honour in rejecting the tender of extracts of a record of interview with Mr Georgiadis. The written submissions filed in support of this ground claim that the extracts supported the applicant’s claim that he did not carry anything from the premises of the victim. In that regard, this ground is related to grounds 3 and 4, in that it is suggested that had His Honour accepted the tender, his findings of fact would not have been open to him.

38 On the hearing of the appeal, it emerged from the evidence of the applicant’s solicitor and from the oral submissions, that this ground required substantial amendment. There were, in fact, not one but two interviews by Mr Georgiadis, extracts of which were sought to be tendered before His Honour and which were rejected by His Honour. The recollection of the applicant’s solicitor was that His Honour rejected the tender on the basis that the whole of the records of interview ought to be in evidence. The applicant’s solicitor went further and asserted that the applicant’s counsel then sought to tender the whole of both records of interview, but that too was rejected by His Honour.

39 The transcript available to the Court on the hearing of the appeal contained no such exchange or ruling. Following the hearing of the appeal, the Court received a transcript of the submission on sentence at the close of the evidence. Both the Crown and the applicant’s counsel provided further written submissions in response to that further transcript.

40 The additional transcript reveals a discussion between the applicant’s counsel and His Honour, wherein His Honour points out that the record of interview of Mr Georgiadis was not before him. The applicant’s counsel (who was also counsel on the appeal) indicated that he “might seek leave to re-open and tender p 16 of that transcript”. The Crown representative responded:-

“If my friend wishes to tender anything the Crown would ask him to tender the whole of the interview.”

His Honour then says:-

“If you want to tender it …. you’ll have to tender the lot.”

The applicant’s counsel then continued his submissions in relation to parity with Mr Georgiadis. A short time later, following another reference to the co-offender’s record of interview in the course of the applicant’s counsel’s submissions, His Honour said:-

“Do you want to put that before me in these proceedings or not?”

The applicant’s counsel responded:-

“My instructions are not to press the tender.”

There the matter rested.

41 Accordingly, there was no tender of any record of interview or any part thereof. At no stage was His Honour required to give a ruling on such a tender, whatever his preliminary view may have been. There is no basis for asserting an error of law on His Honour’s part.

42 Even assuming the admission of both records of interview, the additional material would not have assisted the applicant, given that it was never disputed that Mr Georgiadis remained in his vehicle at all relevant times. His account could not have detracted from the victim’s evidence of the applicant’s conduct inside the premises. Far from assisting the applicant, Mr Georgiadis confirmed the Crown case as noted in respect of grounds 3 and 4. This ground also fails.

43 Ground 5 asserts error in that His Honour was said to have found that the applicant was a person of prior bad character. More particularly, the applicant points to the last entry on the applicant’s criminal history relating to an offence committed in about September 2002, for which the applicant received a Community Service Order in July 2003. As I understand the applicant’s submission, His Honour was not entitled to have regard to that entry in reaching the conclusion that the applicant had “repeatedly been given the benefit by the courts of lenient sentences”. (R/S p 6)

44 The totality of what His Honour said on the subject of prior offences appears at pp 5 and 6 of the remarks on sentence:-

The offender does not have the advantage of prior good character or anything like it. There are a number of offences against his name, although he has not served a prison sentence.
……..
There are a number of matters in the Crown brief on his record which indicate that he has repeatedly been given the benefit by the courts of lenient sentences. It cannot be said that he was a person of prior good character.

45 Regardless of whether the last entry on the applicant’s criminal history concerned an offence which post-dated the offence with which His Honour was dealing, the fact remains that His Honour’s observations in this regard were entirely accurate. The applicant had five previous summary convictions for driving offences, two for Contravene ADVO, one for Indecent Assault and one for Goods in Custody. He had not received any form of custodial sentence.

46 Given the extensive delay in sentencing the applicant on this offence, and the role which the applicant’s legal representative played in that delay, it is not surprising that a summary offence committed six months after the break enter and steal was the subject of conviction and sentence, approximately one year before these sentencing proceedings. His Honour did no more than refer to the applicant’s criminal history, at the time of sentence. This ground of appeal also fails.

47 Ground 6 was abandoned at the hearing of the appeal.

48 Ground 1 asserts that the sentence imposed on the applicant offends the parity principle. The submissions in support of this ground rest, in part, on the fact that Mr Georgiadis pleaded guilty to Aggravated Break, Enter and Steal, carrying a maximum penalty of twenty years imprisonment, yet `` received a sentence of eighteen months, with a Non Parole Period of fifteen months, to be served by way of periodic detention. The applicant’s counsel then drew a comparison between the number of days actually spent in custody over that 15 months of weekend detention, and the number of days of full time custody to be served by the applicant. The conclusion was reached that the applicant’s sentence was therefore three times more lengthy than the sentence imposed on the co-offender.

49 Whilst it is true to say that a sentence of periodic detention is significantly less onerous than one served in full-time custody, the former cannot be mathematically assessed against the latter : R v Pangallo (1991) 56 A Crim. R 441.

50 In the case of both Mr Georgiadis and the applicant, His Honour determined that nothing less than a custodial sentence was warranted in order to reflect the objective gravity of the offence. In Mr Georgiadis’ case, His Honour exercised his sentencing discretion by way of an order for periodic detention. The reasons why that step was not taken in the applicant’s case appear at p 5 of the remarks on sentence:-

That matter is distinguishable from this in the reverse direction to which the nature of the charges might point because of the significantly different roles that were played. Georgiadis was the cockatoo; he is relatively (sic) to this offender an “innocent abroad” and although a prison sentence in that instance was necessary, the form of it was appropriately modified in accordance with his role and his prior character.
In the present case, the offender does not have the advantage of prior good character or anything like it.

51 In addition to these factors, it is also apparent that His Honour had regard to the applicant’s lack of any real contrition or remorse beyond that reflected “in some degree” by the plea of guilty. Mr Georgiadis, on the other hand, had demonstrated real contrition beginning almost immediately after his arrest.

52 No error has been demonstrated in the exercise of the sentencing discretion on this ground.

53 Accordingly, I would make the following orders:-

1. Leave to appeal granted

2. Appeal dismissed.

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