R v Mujedinovski
[2003] VSCA 212
•4 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 184 of 2003
| THE QUEEN |
| v. |
| RICMON MUJEDINOVSKI |
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JUDGES: | WINNEKE, P., VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 December 2003 | |
DATE OF JUDGMENT: | 4 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 212 | |
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Criminal Law – Sentence – Burglary and theft – Whether appellant’s conduct influenced by his desire to maximise his profits or by his gambling problem – Whether sentencing judge erred in imposing disparate sentences upon appellant and co-offender – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Stephen Andrianakis & Associates |
WINNEKE, P.:
I will invite Vincent, J.A. to give the first judgment in this appeal.
VINCENT, J.A.:
The appellant pleaded guilty in the County Court at Melbourne on 5 June 2003 to one count of burglary (count 1) and one count of theft (count 2). He also pleaded guilty to two summary charges relating to the unlicensed possession of a firearm and the unlicensed possession of ammunition.
After hearing a plea in mitigation of penalty, on 19 June 2003 the learned sentencing judge imposed –
On count 1, imprisonment for a period of two years and six months.
On count 2, imprisonment for a period of two years and six months.
No order for cumulation was made and accordingly the total effective sentence imposed was two years and six months' imprisonment, in respect of which his Honour fixed a non-parole period of 12 months. In relation to the offence of possession of a firearm without a licence, the appellant was fined $400, and for the possession of ammunition without a licence, a fine of $100. No complaint has been made concerning the penalties imposed for the summary offences.
Having been granted leave to do so the appellant seeks to overturn the sentences imposed upon him for the two indictable offences on three grounds:
“1.The learned sentencing judge erred in law by unfairly and unduly discriminating against the appellant in violation of the principle of parity.
2. The learned sentencing judge erred in law by:
(a)failing to accept the uncontroverted expert evidence of the applicant’s pathological gambling addiction as a relevant mitigating factor;
(b)failing to place any weight on the applicant’s pathological gambling addiction; and
(c)denying the applicant natural justice by failing to inform the applicant that the expert evidence of a gambling addiction would be rejected in the absence of direct oral evidence of a gambling addiction from him.
6.The learned sentencing judge erred in law by passing a sentence which was manifestly excessive.”
Three further grounds contained in the appellant’s Notice of Application have been abandoned and accordingly need not be addressed.
The Background
Jacob Gilroy was the warehouse manager of Lynch Flowers Pty Ltd, a company which operated as a flower wholesaler to a number of large retail outlets in Victoria when, in about March or April 2000, he was approached by a person he knew as Nadi. Nadi, who operated a florist shop in Lygon Street, Carlton, proposed that Gilroy supply him with flowers without his employer’s knowledge for a cash payment. This arrangement did not eventuate but, a short time later, Gilroy was approached by the appellant who stated that he had been in partnership with Nadi and was now running the shop in Carlton under the name of ‘From Us to You Flowers’. He proposed a similar arrangement. Gilroy agreed and thereafter, for some time, he allowed the appellant to enter the Lynch Flowers warehouse after normal operating hours once each week in order to fill his van with flowers and other stock items, such as sponges and ribbons. For this service, Gilroy received a weekly payment of $700 to $800. After a few months, the appellant commenced to call at the warehouse on each Tuesday and Thursday evening with the amount paid to Gilroy being increased to $1,000 a week. There was a temporary suspension for ten days in October 2000 while Gilroy was on leave and thereafter the premises were left unlocked on these evenings to enable the appellant to help himself to the stock of flowers and other items. The proceeds of this operation were, it seems, used or sold at his florist shop in Lygon Street.
Being able to secure, through this illegal means, large quantities of flowers and other materials at a fraction of the price that he would otherwise have to pay for them, the appellant placed, with understandable confidence one would assume, a large advertisement in front of his shop which stated “We can beat any price on Lygon”. The thefts continued unabated until eventually Gilroy’s employer, Mr Lynch, became concerned about a substantial drop in profits and the amount of missing stock. A private investigator was engaged and this led to the detection of the offences and the arrest of the appellant at the warehouse. On that occasion he was in company with another male, a relative, who also had a florist shop. Each had a van which they were in the process of filling with flowers and other items.
Initially, the appellant asserted that he had attended the warehouse on only two occasions but, when confronted with video footage from the week prior to his interception, he admitted going to the warehouse eight times after Christmas 1999. Later again, when he was informed that Gilroy had made full disclosure, he accepted that he had been engaged in systematic thefts from the warehouse from the previous May.
On 2 February 2000, Gilroy admitted his involvement in these activities, initially stating that he had received approximately $50,000 from the appellant during the course of the offending but later he calculated the amount as being in the vicinity of $38,000 to $40,000. Gilroy estimated that the wholesale loss to his employer was about $200,000 to $250,000 and the retail loss at twice that amount. He stated that the offending extended over a 38-week period and involved two visits to the warehouse per week by the appellant.
A subsequent search of the appellant’s premises revealed the presence of materials identified as belonging to Lynch Flowers Pty Ltd, the approximate value of which was $4,000. The police also located a pump action shotgun and two boxes of ammunition in the appellant’s car that became the subjects of the summary charges.
The proprietor of the company, Mr Lynch, estimated the cost of the flowers, found in and beside the two vans at the time of the appellant’s arrest, at $2,981 and the retail price in the vicinity of $8,821. This, it was accepted, did not represent the estimated value of flowers taken on other occasions as two vans were being used. The appellant subsequently consented to an order for compensation in the sum of $175,000. This gives some indication at least of the seriousness of the offending involved.
Gilroy pleaded guilty before Judge Walsh in the County Court on 15 November 2002 to one count of burglary and one count of theft for his part. He was sentenced to imprisonment for a period of 18 months on each count, the service of the whole of which was suspended for a period of two years.
In view of the grounds of appeal in this matter, some reference is required to what Judge Walsh regarded as “a number of significant considerations”[1] that contributed to the imposition of a sentence upon Gilroy that on its face appears extremely lenient. These were set out in his sentencing remarks as follows:
[1]T.59.
“ … firstly, you deeply expressed and felt shame and remorse; secondly, your plea of guilty and the stage of proceedings at which it was indicated. Indeed, the only investigation required by the police was the taking of the statement which was voluntarily given by you after your employer had taken you to the police station.
Thirdly, you have no prior convictions and you have accordingly attained mature age without breach of the law, and courts of authority have stated on numerous occasions that weight must be given to that particular situation.
Fourthly, you have made a significant payment of compensation to your employer and I am satisfied that you will repay your employer in full in respect of the amounts that you have derived from these crimes.
Fifthly, your co-operation with the authorities I have already indicated.
Sixthly, the wonderful stance taken by Mr Bill Lynch and his organisation in offering you forgiveness and in providing in every relevant sense for your rehabilitation.
Finally, you expressed with resolution your remorse and steadfast loyalty to your employer in the future.
It is the co-existence of all of those matters of personal mitigation which saves you from the immediate service of a portion of the gaol sentence which must be imposed for what are contemptible offences of dishonesty and disloyalty which you now deeply regret.”[2]
[2]T.59-60.
Ground 2
I propose against that background first to address ground 2. In a written submission to the sentencing judge, counsel for the appellant asserted that:
“(j)the offences were committed at a time when the defendant was a ‘pathological gambler’. In essence, these offences were committed in order to feed his gambling addiction. The gambling addiction coupled with his below average intelligence were precipitating factors which led to the commission of these offences. Whilst such matters do not exculpate the defendant of criminal wrongdoing, they do mitigate his moral culpability in light of the fact that he was not the instigator of these offences and was unfortunately enticed into the criminal scheme. At the very least, the defendant’s gambling addiction affords an explanation for the offences but does not afford an excuse for his criminal conduct.”
Reference was made in this context to the decision of this Court in R. v. Atalla[3].
[3][2002] VSCA 141.
A report from Mr Bernard Healey, a forensic psychologist, in which the opinion was expressed that the appellant was “a victim of pathological gambling in the four years prior to October 2002”, was tendered to support this claim. Unsurprisingly, whilst the sentencing judge accepted the unchallenged opinion that the appellant had been addicted to gambling for some period prior to the commission of these offences, he rejected the assertion that they were committed in order to satisfy an addiction from which the appellant was suffering at the relevant time. In this context he referred to a statement of the appellant in his first interview with the police:
“There was a shop there for 16 years and I opened next to it. So got to have the prices down so I can get customers.”
He later stated in the same interview:
“You can say one thing, you can start laughing or whatever you call it, it’s a brainwash.”
In the second interview, when he was claiming to have gone to the warehouse on eight occasions only, the appellant was asked:
“Q.728Okay. After hours. Yeah. What’s your reason for burglary of the – of the premises at Lynch’s warehouse?
DETECTIVE SERGEANT MACKOND: On the 8 occasions.
DETECTIVE SENIOR CONSTABLE MULLINS: On the – on all of the occasions.
A.It’s a stupid thing I can say the reason is. That’s what the reason – whatever you can say it is.
Q.729Okay. And what’s your reason for stealing all – stealing the flowers, the stand, the oasis material and the tape on the eight occasions?
A.That’s, as I said to you, it’s a – can’t be any stupid reason than that.”
It is particularly noteworthy when considering the correctness of the sentencing judge’s view of the appellant’s motivation that at no time during his police interviews, although afforded more than one opportunity to do so, did the appellant suggest that any relationship existed between an addiction to gambling and his engagement in these offences. However, I do observe that at one point he denied that he was in any financial difficulty. He asserted that he had $5,000-$6,000 in the bank and said that he could survive for up to six months without work had he needed to do so.
The circumstances under which the approach was made to Gilroy also cast some light on this aspect. The first overture to him had been made by the person referred to as Nadi, the brother-in-law and former partner of the appellant, and it was within a week of the appellant taking control of the business that he pursued the possibility of securing flowers illegally.
The statement by the learned sentencing judge that the assertion made by the appellant to Mr Healey and on his behalf by counsel in his submission on the plea did not sit comfortably with the evidence could hardly be described as an overstatement of the situation. There was absolutely nothing, save the appellant’s assertion subsequent to arrest, to support the possibility that his conduct was influenced by any other motive than his desire to maximise his profits and to gain an advantage over his competitors. The assertion made on his behalf in the plea was contradicted by his own statements to the police when interviewed by them and inconsistent with the circumstances surrounding the commission of the offences. I should add that, contrary to the contention advanced before us, his Honour was under no obligation to indicate prior to handing down sentence that he did not accept the submission that the appellant’s conduct was related to a gambling problem. There was no denial of natural justice in his rejection of a submission put to him based upon an appropriate review of the material before the Court.
There is in my opinion no substance in this ground.
Ground 1
The co-offender Gilroy had been sentenced by Judge Walsh approximately six months before the appellant. I have earlier set out a number of matters to which his Honour attributed significance in the determination of an appropriate sentence for this offender. The sentencing judge in the appellant’s case stated that he had read and considered the plea material before Judge Walsh and his Honour’s reasons for sentence. He pointed out that there were a number of features which distinguished the position of the two offenders. They included:
•The fact that Gilroy entered his plea of guilty at the first available opportunity, whereas the appellant did so “at a much later stage in the proceedings”.
•Gilroy co-operated with the authorities fully and from the very outset in contra-distinction to the appellant who twice lied about his level of involvement and co-operated fully only after he became aware that Gilroy had made a statement to the police implicating him in a scheme running from May 2000.
•Judge Walsh, in sentencing Gilroy, accepted that he was extremely remorseful, had made special efforts to effect some recompense and had genuinely undertaken to do more. These endeavours were recognised by his employer who was prepared to continue to support him.
•Gilroy had given an undertaking on oath to give evidence against the appellant.
•The appellant was the instigator of the scheme and obtained far greater financial reward from the activity than his co-offender.
•Although Gilroy had engaged in a very serious breach of the trust reposed in him by his employer, Judge Walsh formed the view that the situation of this offender was unique in his very substantial experience in the court.
The remarks of his Honour in the present case make abundantly clear that he approached the question of parity of treatment of the co-offenders with considerable care. There were, as he recognised, a number of significant features which not only justified but required the imposition of disparate sentences upon the two offenders. There is nothing in his Honour’s extensive and carefully reasoned remarks that could be seen to be suggestive of any error of principle in his consideration of this matter, nor can the degree of disparity be regarded as inappropriate in all of the circumstances.
This ground also must fail.
Ground 6
Little need be said in relation to this ground. The appellant engaged in the commission of something in the vicinity of 70 burglaries of the victim’s premises during a period of approximately nine months. Flowers and items of very substantial value were stolen by him. Those activities were encompassed by two rolled-up counts. His Honour accepted, as he was entitled to do, that the motivation for engaging in this behaviour was to secure a commercial advantage over two competitors whose florist shops were located near his own. There was nothing in the circumstances of the offences to ameliorate the seriousness of this conduct. Taking into account those features which were advanced on his behalf in mitigation of penalty, I am far from persuaded that either the sentence of two years and six months imposed on each of the counts and as a total effective sentence or the non-parole period which has been fixed should be regarded as outside the range available to the sentencing judge in all of the circumstances.
I would dismiss this appeal.
WINNEKE, P.:
I agree.
EAMES, J.A.:
I also agree.
WINNEKE, P.:
The order of the Court is that the appeal against sentence is dismissed.
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