R v Nikolich
[2001] VSCA 128
•2 August 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 2 of 2000
| THE QUEEN |
| v. |
| GEORGE NIKOLICH |
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JUDGES: | WINNEKE, P., CHARLES and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 August 2001 | |
DATE OF JUDGMENT: | 2 August 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 128 | |
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Criminal law - Sentencing - Multiple offences of armed robbery, burglary and false imprisonment - Total effective sentence on three separate presentments of 7½ years - Applicant's prior convictions - Assistance to police and prosecuting authorities - Pleas of guilty - Informer's discount - Disparity with sentences imposed on three co-offenders - No manifest excess - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.G. Just | Ms Kay Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr M.R. Simon | Jonathan Kemp & Associates |
WINNEKE, P.: I will ask Charles, J.A. to deliver the first judgment.
CHARLES, J.A.:
On 19 January 1998 the applicant, who is now aged 32, was presented in the County Court at Melbourne before Judge McInerney and pleaded guilty to all counts on two presentments, K00719250 and C9700541/A. I shall call presentment K00719250 "the first presentment", and presentment C9700541/A "the second presentment". On 10 March 1998 the applicant pleaded guilty to counts 2 and 3 in presentment 9700438, which I shall call "the third presentment". I shall deal with each of these presentments in turn.
The first presentment contained seven counts: count 1, aggravated burglary, for which the maximum penalty was then 15 years' imprisonment; counts 2 and 3, armed robbery, the maximum penalty being 20 years; count 4, robbery, for which the maximum was 12½ years; and counts 5, 6 and 7, false imprisonment, a common law offence for which the penalty is at large.
The second presentment contained ten counts: count 1, possession of cannabis L, for which the maximum was one year; count 2, attempting to obtain property by deception, the maximum being 7½ years; counts 3, 4, 5, 6, 9 and 10, burglary, the maximum being 10 years' imprisonment; count 7, conspiracy to commit robbery, the maximum being 12½ years' imprisonment; and count 8, conspiracy to commit an armed robbery, for which the maximum was 20 years' imprisonment.
Count 2 of the third presentment related to an offence of blackmail, for which the maximum was 12½ years, and count 3, theft, the maximum being 10 years' imprisonment.
On 29 January 1998, Judge McInerney sentenced the applicant on the first presentment, on count 1 to 58 months', on counts 2 and 3 to 72 months', and on counts 4, 5, 6 and 7 to 36 months' imprisonment. The total effective sentence was 72 months' imprisonment. On the second presentment his Honour on the same day sentenced the applicant on counts 1, 2 and 4 to 10 months', on counts 3, 5, 6, 9 and 10 to 20 months', on count 7 to 30 months' and on count 8 to 40 months' imprisonment. Orders for cumulation were made as to three months of the sentence imposed on counts 5, 9 and 10 and ten months of the sentence imposed on count 7 to be cumulated upon the sentence on count 8, making a total effective sentence on the second presentment of 59 months' imprisonment. His Honour directed that three years of the sentence imposed on the second presentment be served cumulatively upon the sentence imposed on the first presentment, making a total effective sentence on both presentments of nine years' imprisonment. His Honour fixed a non-parole period of seven years.
On 3 July 1998 Judge Rendit sentenced the applicant on the third presentment on count 2 to 21 months' and on count 3 to 12 months' imprisonment, three months of the sentence on the second of these counts being made cumulative upon the first, producing a total effective sentence on the third presentment of 24 months' imprisonment. His Honour directed that six months of this sentence be served concurrently with any other sentence the applicant was undergoing, and pursuant to s.14 of the Sentencing Act 1991 his Honour fixed a new non-parole period of 90 months. The applicant has not sought leave to appeal against the sentence imposed by Judge Rendit.
The applicant now seeks leave to appeal, on the following grounds, in relation to the sentences imposed on the first two presentments:
1.The judge gave insufficient weight to the assistance by the applicant to the police including an offer to give evidence for the police.
2.The judge gave insufficient weight to the fact that the applicant's sentence would be more burdensome due to the assistance provided by him to the police.
3.The sentence on each count, the head sentence and non-parole period are all manifestly excessive.
4.The judge gave excessive weight to the applicant's prior convictions.
5.The judge gave insufficient weight to the applicant's pleas of guilty.
6. The sentences imposed infringed the principle of parity.
7.The judge erred by ordering that three years on the second presentment be served cumulatively on the first presentment.
8.The judge erred in that he failed to give any or any sufficient weight to the fact that the applicant would have to serve the sentence on which he was on parole.
9.The judge erred in that he failed to give any weight to the fact that the applicant was still to be sentenced in relation to the third presentment.
The facts giving rise to these offences were as follows. Mr and Mrs Pliatsios were the owners and operators of a supermarket in Emerald and lived approximately 200 metres from their supermarket. It was their practice to bring home the takings at weekends and keep the money there until it could be deposited with the bank on Mondays. The applicant, having learnt of this routine from a friend, told one Anton Zolzac of a plan he had conceived to rob Mr and Mrs Pliatsios and recruited him as an accomplice. The applicant hired a small van to use as transport for the robbery. He expected that there would be approximately $100,000 in cash on the premises.
Early in the morning of Monday 23 December 1996 the applicant and Zolzac went to the home of Mr and Mrs Pliatsios, the applicant carrying an imitation pistol. Zolzac had a roll of masking tape, a roll of electrical wire and a pair of pliers. Both wore balaclavas, gloves and dark clothing. Mr and Mrs Pliatsios were in bed asleep, and at home there were also their two children, a son Brian aged 16 and a daughter aged 11. The applicant gained entry through a high kitchen window and admitted Zolzac through the kitchen door (count 1). Upon entering the house they found the son awake and seated at his computer. Zolzac ordered the boy to lie face down on the floor with his hands behind his back, and tied his hands and feet with a cord. The applicant asked him where the money was and the son denied knowledge. The applicant then put a gag around his mouth (count 7). Further demands were made of him as to where the money was. The applicant and Zolzac then conducted a search, which was unsuccessful. The applicant told the boy that he was playing games and there would be trouble, and then placed a blanket over his head. The applicant then opened the door to another bedroom, saw the daughter sleeping and closed the door without disturbing her.
The applicant then moved down the passageway to the main bedroom where Mr and Mrs Pliatsios were sleeping. Zolzac caught up with the applicant at the door to the main bedroom. Mr Pliatsios woke up and jumped from the bed, trying to tackle the two intruders, being joined in the struggle by his wife. The applicant then produced the imitation firearm and pointed it at Mrs Pliatsios, and upon seeing this Mr and Mrs Pliatsios both backed away. The applicant then told them to lie on the floor and told Mr Pliatsios to put his hands behind his back. Zolzac then tied his hands with electrical wire. Mrs Pliatsios's hands were tied behind her back with a belt and necktie and masking tape was placed over her mouth and ears. A jumper was then put over her head. Mr Pliatsios had a jumper thrown over his head and masking tape was also placed over his mouth (counts 5 and 6).
The bedroom cupboards were then ransacked. The applicant found Mrs Pliatsios's handbag, which he up-ended and emptied onto the bed, repeatedly asking his victims where the money was. He removed $400 from Mrs Pliatsios's purse (count 2). Meanwhile Zolzac returned to where the son was and asked him where the money was kept. The boy pointed to his hip pocket and Zolzac removed $70 in cash from it (count 4).
Zolzac then found in the en suite bathroom to the main bedroom a wallet containing $800, which he took (count 3). The applicant then found three calico bank bags containing approximately $19,000 in cash, and placed these bags on the bed. The applicant and Zolzac refused to accept that there was no more money to be found, clinging to their belief that there was in the vicinity of $100,000 in the house. They repeatedly asked their victims where the rest of the money was, and were told that that was all that there was. The applicant told the victims not to worry because the stolen money would be covered by insurance.
After conducting a further search through the kitchen cupboards, the offenders then left the house through a rear window, leaving behind, however, the three bags containing $19,000.
Mr and Mrs Pliatsios remained on their bedroom floor until they were sure that the offenders had left and then assisted each other in freeing themselves. They found their son bound and gagged on the floor of the study. When they then tried to call the police on the bedroom telephone, they found that the cord had been cut. Victim impact statements made by Mrs Pliatsios and the son Brian were before the judge and give clear testimony to the terror to which they were subjected and its after-effects.
In respect of the matters mentioned in the first presentment, the applicant was interviewed by police on 26 March 1997 and made extensive admissions, including participating in a video-taped re-enactment. Zolzac was not interviewed until 3 December 1997, making extensive admissions on that date.
The offences in the third presentment arose out of the following circumstances. I shall deal briefly with them, since they are not the subject of an appeal. In January 1997, one Marco Missaglia claimed to have been supplying an acquaintance, Ms Jeanette Marven, with quantities of amphetamines. A dispute arose as to whether those amphetamines had been paid for. On 15 January 1997, Missaglia, the applicant and Zolzac went in a car driven by the applicant to a house in which Ms Marven was present with one Vaughan Lucas. The applicant remained in the car while Missaglia and Zolzac went up the driveway, where they met Lucas. They told Lucas they had come for the money which Marven owed for drugs, and Lucas said he would not allow them into the house because his three children were there. The dispute between the parties continued, with Marven and Lucas both denying that any money was owed. When Marven came out of the house, a demand was made for $700 and Marven said she owed less than this. Missaglia then said to the applicant that he should "cap her", meaning that he should shoot her. Marven believed she would be shot. Three hundred dollars was offered and Missaglia took it from Lucas. To prevent matters becoming worse, Lucas suggested to Missaglia that they leave together and that he would withdraw the rest of the money from his bank account. Lucas went into the house to pick up his cheque book and then drove his own car to the National Bank in Langwarrin, while the three offenders followed in the applicant's car.
At the bank, Lucas withdrew $250 in cash and handed it to Missaglia, one of the three telling Lucas that that was not enough. The three men surrounded Lucas, and Zolzac lifted up his top to reveal what appeared to be a pistol stuck into the waistband of his trousers. Zolzac told Lucas that if he did not have the remainder of the money by 9 o'clock that evening he would be "capped". Zolzac has since stated that he had a knife, not a pistol, tucked into his pants.
At about 7.30 p.m. on the same day, Zolzac and the applicant went to Marven's house in Langwarrin and said to a man there that they had come to collect some money. The man said he had no idea what they were talking about and left the premises. Zolzac and the applicant then gained entry to the premises and removed furniture, electrical goods and ornaments to the value of $1,500.
Later that night the applicant and Zolzac both returned to Lucas's house and made further demands for the balance of the money allegedly owed by Marven. They demanded that Lucas hand over his television set and video cassette recorder, and while they were thus engaged with Lucas, Marven telephoned the police, who came and arrested the applicant and Zolzac.
The facts giving rise to the second presentment were as follows. In November 1996 the police commenced an investigation into the activities of Umberto Missaglia, who lived in Spring Valley Way, Narre Warren. Initially the investigation was based upon information that Umberto Missaglia was assisting in defrauding motor vehicle insurers. On 24 January 1997 the applicant moved into Umberto Missaglia's premises, and Duyo Anic regularly went to the same premises after the applicant moved in. The police conducted their investigation with the assistance of a listening device and by physical surveillance. The events supporting the second presentment all took place in February and March 1997, and involved Umberto, not Marco, Missaglia.
On 4 February 1997 the applicant and two associates went to a market garden where they picked up a plastic shopping bag which was later found to contain cannabis L. The applicant and his companions drove to a nearby home and placed the bag of cannabis L in the boot of another vehicle. The applicant then left in his vehicle. Those carrying the bag were later intercepted and arrested by the police, who seized the bag, which was found to contain 442 grams of cannabis L (count 1).
In February, Missaglia was asked to assist one Karaszkewycz to dispose of a four-wheel drive vehicle for the purposes of making a false insurance claim, and he agreed to do so for a fee of $1,000. On 16 February, Missaglia and the applicant picked up the vehicle and Karaszkewycz later reported to the Doncaster police that the vehicle had been stolen. He intended to make an insurance claim for the value of the vehicle, $20,000. The applicant stored the vehicle near his mother's home for a short period, having earlier arranged for an employee of a car yard to dispose of the vehicle. The vehicle was seized by police on 17 February 1997 (count 2).
In the early hours of the morning of 24 February, the applicant and Duyo Anic, in company with one Joe Failla, went to the rear of a butcher's shop in Narre Warren and obtained entry using boltcutters and a hacksaw to cut away an iron grille. Once inside the premises they stole a large sausage filler, an Akai radio/cassette player, a meat slicer, a hamburger press, an electronic cash register, a set of electronic scales, assorted butcher's knives and assorted quantities of meat. Most of the property was disposed of over the next few days (count 3).
On the evening of 25 February, Missaglia and the applicant drove to Anic's home in Dandenong and the three, together with Failla and Matthew Oakford, drove to Rushworth. They drove around the Rushworth township looking for a place to break in, stopped outside a hardware store, and Failla cut the padlock off and attempted to force the door to the premises. However, the occupants of nearby premises came out to investigate and the offenders drove away (count 4).
Early on 26 February, the same offenders parked outside a table-top dancing venue, the Rhino Chasers Bar, in Springvale and, using the tools they had with them, gained entry to the rear by cutting open a roller door. Once inside the premises they were obstructed by other doors and an alarm was activated. They fled. Some time later they re-entered the premises and broke the internal doors off the hinges. However, the alarm was again activated and again they fled (count 5).
In the early hours of 3 March, the applicant, Missaglia and Anic went to the rear of a butcher's shop in Noble Park, forced open the rear door of the premises, and stole a meat slicer, a large sausage machine and a quantity of knives and sharpening steels. Again most of the property was disposed of in the next days (count 6).
On 4 March, the same offenders began planning an armed robbery on a meat transport company, having acquired information about the usual delivery route and times of arrival and departure taken by one particular driver. They had obtained information that this driver would take a rest break by sleeping in the cabin of his truck at Laverton, and it was there that they proposed to carry out the robbery. Their plan was to rob the driver at gunpoint, handcuff him and place him in the boot of a car. They then planned to drive the truck loaded with meat to Wantirna, where they would unload the meat, and abandon the truck then in Doveton. The applicant had access to a .45 calibre handgun but had recently lent it to an associate. From the time they commenced planning the armed robbery, the applicant made repeated attempts to retrieve the handgun but was unsuccessful. It was their intention that Anic and Missaglia would drive the truck, the applicant volunteering to "take care" of the driver by handcuffing him, and placing him in the boot of their car. The offenders expected to receive $80,000 for the meat. They intended to carry out the robbery on 7 March but it was postponed due to the Labor Day long weekend (count 7).
In a telephone conversation on 7 March, the applicant told Missaglia that he planned to rob Missaglia's employer, a butcher at the Parkmore shopping centre. Missaglia told the applicant not to do this, but later that day telephoned him and told him to rob another butcher at the complex. The applicant and Anic were told that this butcher, one Linden, usually finished work after 9 p.m. and then carried his shop's takings in a black briefcase to his white utility. Anic and the applicant proposed waiting in the loading bay for the butcher and to take his money as he was leaving at the end of the day. At 8.30 p.m. on 7 March, the applicant and Anic left Missaglia's home and drove to the shopping centre, parking in a street west of the complex near a medical centre. After waiting for some 40 minutes, they returned to their vehicle and drove away, not having been made aware that the management of the shopping centre had changed the areas where private vehicles could be parked. The applicant returned to the shopping centre at 5.20 p.m. on the afternoon of Saturday 8 March, waiting in the same area as on the previous night. Again he and Anic were unsuccessful (count 8).
On the night of 8 March, the applicant, Missaglia and Anic decided to commit a burglary at Lamont's Gourmet Meats in Hampton. They had been told by an associate that the premises contained a large meat vacuum packaging machine and they knew a friend who wanted one. Missaglia, the applicant and Anic, taking with them Missaglia's six-year-old son, drove to the butcher's premises, where Anic and the applicant gained entry to the rear yard by cutting the padlock to the gate with a pair of boltcutters. They forced the rear door off its hinges and entered the premises, where they stole some cash. When, however, Missaglia's son began to feel ill, they stopped proceedings while Missaglia took his son home. The applicant and Anic stayed, but noticed a woman in a vehicle nearby. They waited for her to go, finally leaving when they saw police in the area (count 9).
On 9 March, the offenders decided to return to Hampton with a trailer to steal the meat vacuum packaging machine. At 10.30 they went to the rear of the butcher's premises in two vehicles, entered the rear of the store and removed the machine. At that point they, together with Peter Liggos, were arrested by investigating officers while they were loading the machine on to the trailer (count 10).
The three offenders were interviewed by police and Anic replied "No comment" to all questions put to him. Missaglia and the applicant made full and frank admissions regarding most of the offences.
Before turning to the grounds of the application I should now mention the applicant's prior convictions, since these were an important aspect of Judge McInerney's sentencing reasons. The applicant was first convicted on 5 November 1986 of armed robbery and placed on a community-based order for 12 months. On 24 August 1987 he was brought before the County Court for a breach of this order, which was then cancelled, and he was ordered to be detained in a youth training centre for 12 months, with six months to be served concurrently with the sentence he was then undergoing. In November 1988 the applicant was convicted in the Magistrates' Court of trafficking in a drug of dependence, for which he was sentenced to three months' imprisonment, suspended for a period of 12 months. In June 1989 the applicant was convicted in the County Court of intentionally causing serious injury, robbery, and being in possession of a pistol without a licence. For these offences he was sentenced to a total effective sentence of four years' imprisonment, and ordered to serve a minimum of three years before being eligible for parole. In May 1994 the applicant was convicted in the Magistrates' Court of being in possession of property suspected of being stolen or unlawfully obtained and sentenced to three months' imprisonment. Then in October 1994 he was convicted in the County Court of three counts of armed robbery and sentenced to a total effective sentence of five years' imprisonment, a minimum of three years to be served before he became eligible for parole. The first of these armed robberies took place in May 1993 at a hotel, and the second and third occurred in relation to a post office and a Pizza Hut. The sentencing remarks for the armed robberies were placed before Judge McInerney and showed that the first armed robbery at the hotel had been described by the judge as "an armed robbery which was large scale and sophisticated". The other two were also regarded as serious, and a gun was used on both occasions. Judge McInerney was told that the applicant commenced his parole in relation to this last sentence on 5 June 1996. The planning for the offences which made up the counts on the first presentment before his Honour commenced in October and November following his release on parole. Only six months after having been released on parole, the offences on the first presentment were then committed.
It is necessary now to set out the prior criminal history of the applicant's co-offenders. The co-offender in relation to the first presentment, Zolzac, had nine prior convictions, all in New Zealand between 1979 and 1987. These were mostly for minor offences, the two most serious being a conviction for receiving on 3 December 1986 and a conviction for burglary by night on 12 February 1987. On both of these offences Zolzac was placed on a supervision order for one year. Zolzac had never previously been incarcerated, and no other offences had occurred between 1987 and December 1996. Zolzac was born on 18 February 1962, and so was 24 when last convicted in New Zealand.
The co-offenders in relation to the second presentment were Umberto Missaglia and Duyo Anic. Missaglia had 22 prior convictions, between 1984 and June 1994, the most serious of which were 13 convictions of obtaining financial advantage by deception. On each of these offences Missaglia had received a suspended sentence of two months' imprisonment. He had twice been fined $750. When Missaglia was sentenced by Judge McInerney, he had never previously been incarcerated. Judge McInerney said of him that he did not have the significant prior history of the present applicant, whom he described as a serious career criminal. Missaglia was four years older than the applicant.
Duyo Anic had 20 prior convictions between July 1985 and January 1996. These included two charges of trafficking in a drug of dependence, apparently cannabis. He was first convicted of trafficking in November 1991 and placed on a community-based order for 18 months. On the second conviction for trafficking in January 1996 he was sentenced to four months' imprisonment. On one other occasion, Anic had been sentenced to a prison term, having been sentenced to two months' imprisonment in October 1993, wholly suspended. Judge McInerney said of Anic that his priors really related to an issue of drug dependency and its effects.
At the outset of his written submissions, Mr Simon for the applicant relied on what was said to be a number of mitigating circumstances. He referred to the applicant's plea of guilty, that his role in relation to counts 1, 2 and 4 on the second presentment (for which in each case he received ten months' imprisonment) was peripheral, that he suffers from a depressive illness, the offences involved very little sophistication, most of the items taken were recovered as a result of co-operation provided by the applicant, that he provided substantial information to the police and was co-operative with them, and the difficulties outlined in the oral evidence in support of his case given by Mr Watson-Munro.
As to these matters it is necessary to return briefly to what was said by Judge McInerney in relation to the offences on the first presentment. The planning for the armed robbery in Emerald commenced not long after the applicant's release on parole. His Honour said the circumstances of these crimes "can only be described as horrific", and later stated, in terms with which I fully agree, that -
"The criminality of these offences is particularly high. Planned for financial reward and committed in circumstances of terror, which involved subjugation of people seeking to protect their home and loved ones, by the use of a pistol. I consider that such offences render those carrying out offences of that type deserving of condign punishment."
The ground particularly argued by Mr Simon in this Court complained of a lack of weight given to the applicant's assistance to the police. This may be taken with the related ground that the judge gave insufficient weight to the fact that the applicant's sentence would be more burdensome due to the assistance provided by him. When he was arrested on 9 March 1997 he made a lengthy record of interview confessing to the offences and implicating his co-accused. As a result of this assistance, all but a meat slicer was recovered by the police. This assistance continued to the point of offering to give evidence against Zolzac. The assistance to the police also covered a number of offences unrelated to the three presentments. The applicant himself entered the witness box during the plea, confirming his willingness to give evidence against Zolzac should it be necessary. Evidence was then given by Detective Senior Constable Michael Daly as to the assistance given by the applicant. In particular, his assistance in relation to the matters the subject of the first presentment, according to Detective Daly, "more or less broke the case".
There is no question but that these matters entitled the applicant to a substantial discount in sentencing. But they were given careful attention by Judge McInerney. His Honour dealt at considerable length with the applicant's early plea of guilty, with the assistance given by him to the police, and the informer's discount to which he became entitled by the giving of such assistance. His Honour emphasised that the applicant's incarceration would be spent in protective custody and would be more burdensome in consequence. Express reference was made to a lengthy passage in the judgment of Wells, J. in R. v. Golding[1], where his Honour set out certain propositions about sentencing informers. Having mentioned these matters at length, Judge McInerney said that he had taken them into account in the determination of each respective sentence and in the aggregate determination relevant to each presentment. His Honour said -
[1](1980) 24 S.A.S.R.161, at 172-174.
"I make it clear, however, that the fact of the guilty plea, the early plea, the assistance to police by way of statements and re-enactments and advice as to where stolen property was are matters of mitigation that I do take into account. But I do not find such facts indicative of remorse or indicative of a person determined to rehabilitate his life."
The applicant's counsel had relied on all of these matters as indications of remorse, together with the pleas of guilty. The judge however said that he perceived no remorse whatever in the applicant and decided that the court was dealing with "a determined criminal who is obviously committed to such a life". When defence counsel put it that these matters indicated a desire to "wipe the slate clean", his Honour said -
"I reject those factors as indicating remorse. They are no more, in my view, than a criminal in the circumstances of Mr Nikolich trying to save his skin at the expense of his fellow participants."
His Honour's views as to the question of rehabilitation, and remorse, and that the applicant was unlikely to reform, were based on the actual circumstances of the crimes, their dimension, their commission whilst on parole and the transcripts his Honour had read both of the previous proceedings and the recordings made in the police surveillance. These conclusions were not seriously challenged in this Court.
Having regard to the applicant's prior criminal history, it would have been well open to the judge to fix a much higher sentence in relation both to the first and second presentments, in the absence of the discounts to which the applicant was entitled by virtue of his assistance to the authorities and which were expressly taken into account. Grounds 1 and 2 fail. I shall return to the question of parity later.
It was then submitted under ground 4 that the judge gave excessive weight to the applicant's prior convictions. The submission was shortly made, and I do not accept it. In my view, the continuing record of the applicant's criminal behaviour previously set out fully justified his Honour's description of him as a committed career criminal. Appropriate weight was given to his prior convictions, for reasons which were stated at length.
Ground 5 claims that insufficient weight was given to the pleas of guilty. There is nothing in this point. Judge McInerney said expressly on several occasions that the pleas were early and given weight and taken into account in sentencing.
Ground 6 raises the question of parity. Zolzac, the co-accused on the first presentment, received a sentence of five years' imprisonment compared with the applicant's overall term of six years. In relation to the second presentment, the applicant was, as I have said, sentenced to 59 months, three years of that sentence being made cumulative upon the first presentment. When Umberto Missaglia and Anic came to be sentenced by Judge McInerney, Missaglia received a sentence of 38 months, with a non-parole period of 20 months, and Anic received a sentence of 18 months of which 12 months was suspended for three years.
Both Judge Rendit, who sentenced Zolzac in relation to the offences of the first presentment, and Judge McInerney, who sentenced Umberto Missaglia and Anic in relation to the same offences as those for which the applicant was dealt with on the second presentment, had before them Judge McInerney's earlier sentencing reasons dealing with the applicant and distinguished in detail and carefully between various co-offenders. In so far as Zolzac was concerned, Judge Rendit said in relation to the offences on the first presentment that it was plain that the applicant was the architect of these crimes and the person who planned them. He enlisted Zolzac's aid. His Honour said of Zolzac that he was uneasy and not comfortable in the commission of these offences and that it was the first time he had committed a crime as grave as these. His Honour put it that the applicant's antecedents were such as to warrant a much harsher penalty being imposed on the applicant than on Zolzac. Judge Rendit also said that Zolzac had reasonable prospects for rehabilitation. The judge expressly took into account the assistance given by the applicant to the authorities, which had been reflected in the earlier sentence imposed by Judge McInerney, when weighing the question of parity against Zolzac.
In R. v. Mark Paul Galea[2], Winneke, P., with whom Vincent, J.A. and I agreed, said -
[2][2001] VSCA 115 at [13], [16].
"‘Parity’ in sentencing between co-offenders is always a desirable objective but, as in the application of most sentencing principles, it is a matter of degree and relativity. There is no rule of law which requires offenders to be given the same sentence on the same counts even if no distinction can be drawn between them. It will of course not be uncommon for the circumstances of the offenders to be quite different, as will be their respective roles in the offence for which they are being punished. It is only where the disparity of sentence is manifestly excessive that an appellate court will be moved to intervene on the basis that it is clear that justice has not been even-handed. Before a court will intervene however, the disparity would need to be so manifest that it not only engenders a justifiable sense of grievance in the offender but would give the appearance to an objective observer that justice has not been done."
Later his Honour said -
"[D]iscrepancy and disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
See also Postiglione v. R[3].
[3](1997) 189 C.L.R.295 at 301-2 per Dawson and Gaudron, JJ.
It follows that I do not think that there was any undue disparity as between the sentence imposed on Zolzac, having regard both to his lesser involvement in the crimes and his prior criminal record, and the sentences imposed on the applicant.
Umberto Missaglia and Anic were, as I have said, also sentenced by Judge McInerney, and on this occasion, his Honour found that there was relatively little discrepancy in the roles of the three offenders in the various offences. The judge, however, went to considerable lengths on the question of parity in distinguishing between the prior criminal histories of the three co-offenders. His Honour found that both Missaglia and Anic were hard workers, with solid employment records, showing remorse for their criminal activities. Judge McInerney took the view that both of them could be rehabilitated, and in both cases their criminal records were very much less serious than that of the applicant. The judge was, I think, clearly entitled to arrive at these conclusions, and having regard to his Honour's careful and detailed consideration given to the question of parity, I would reject this ground also.
Ground 7 claims that the judge erred by making cumulative three years of the sentence imposed on the second presentment on the sentence imposed on the first. There is nothing in this ground. Cumulation of three years was well justified, having regard to the number of offences involved, the extent of the applicant's criminality, and his prior criminal record.
It is also claimed that the applicant is relatively young, and that the sentences individually and in total are manifestly excessive. In fact he is now 32. In light of all that has previously been said, there is in my view nothing in the ground of manifest excess.
I would dismiss the application for leave to appeal against sentence.
WINNEKE, P.:
I agree, for the reasons given by Charles, J.A., that the application for leave to appeal against sentence should be dismissed.
VINCENT, J.A.:
I also agree in the reasons advanced.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against sentence is dismissed.
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CERTIFICATE
I certify that this and the preceding 17 pages are a true copy of the reasons for judgment of Winneke, P., Charles and Vincent, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 2 August 2001.
DATED the day of 2001.
Associate
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