R v Poloni - [2005] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 252 of 2004

THE QUEEN

ANTHONY SEBASTIAN POLONI

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JUDGES:	CHARLES, VINCENT and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2005
DATE OF JUDGMENT:	18 July 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 177

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Criminal law - Sentence - Burglary and Theft - 123 offences - Technical errors in sentencing disposition and some offences not dealt with - Plea of guilty - Absence of prior convictions - Head sentence of 62 months, non-parole period of three years not manifestly excessive - Appeal allowed solely to resentence appellant in accordance with sentencing judge's clear intention.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.M. Horgan, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	Randles, Cooper & Co. Pty. Ltd.

CHARLES, J.A.:

The appellant pleaded guilty in the County Court at Melbourne on 26 August 2004 to a presentment alleging 105 counts of theft, six counts of burglary, four counts of possession of a drug of dependence, and single counts of attempted theft, handling stolen goods and cultivation of a narcotic plant. He also pleaded guilty to five summary offences consisting of charges of possession of property suspected of being the proceeds of crime, and single charges of possession of an unregistered handgun, possession of articles for use in the course of a theft, and dealing with stolen goods. He admitted two previous dispositions, one at the Children's Court, which the judge correctly observed were of little relevance to the matters then before the court.

On 1 October 2004 the appellant was sentenced by the judge to a total effective sentence of five years and two months' imprisonment, with a non-parole period of three years. On 29 April 2005 the appellant was granted leave to appeal against sentence under s.582 of the Crimes Act 1958.

The offences occurred in the following circumstances. All offences, other than the first count of theft, took place in the period from July to December 2003. The appellant had developed a method of gaining illegal entry to recent model Ford vehicles. He typically used a stolen motor car to locate others, and then stole personal property found inside these other cars. The majority of the offences were committed in the northern metropolitan region of Melbourne. The appellant's rate of offending increased steadily, from approximately one offence per week in July to seven offences the night before he was finally arrested. The Crown estimate of the total value of property the subject of the counts in the presentment was approximately $370,000, and this estimate was not challenged.

Examples of the appellant's offending are as follows. On 30 September 2003, the police searched premises at 104 North Oatlands Road, Yarrambat, where the appellant lived with his parents, in a garage at the rear of the premises. A large quantity of stolen goods was found there, and a total of 113 separate exhibits were seized under warrant. The appellant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Poloni

Details

AGLC: R v Poloni [2005] VSCA 177
Case: [2005] VSCA 177
Decision Date: 18 July 2005

CaseChat Overview and Summary

Poloni was charged with 123 offences of burglary and theft. He pleaded guilty to the charges and was sentenced by a magistrate in the Magistrates' Court of Victoria. The appellant appealed the sentence, arguing that the sentencing judge had made technical errors and had not dealt with all the offences. The appeal was heard by the Court of Appeal in Victoria.

The legal issues in the case were whether the sentencing judge had made technical errors in the sentencing disposition and whether some offences had not been dealt with. The appellant argued that the sentence was manifestly excessive and that the sentencing judge had not properly considered the appellant's absence of prior convictions. The Crown argued that the sentence was appropriate and that any technical errors did not amount to a miscarriage of justice.

The Court of Appeal held that the sentencing judge had made technical errors in the sentencing disposition and that some offences had not been dealt with. However, the Court found that the head sentence of 62 months and the non-parole period of three years were not manifestly excessive. The Court held that the sentencing judge's clear intention was to impose a sentence of 62 months with a non-parole period of three years, and that the technical errors did not amount to a miscarriage of justice. The Court allowed the appeal solely to resentence the appellant in accordance with the sentencing judge's clear intention.

The Court of Appeal resentenced the appellant to a head sentence of 62 months with a non-parole period of three years. The Court held that the appellant's absence of prior convictions was a mitigating factor, but that the seriousness of the offences and the need for general deterrence outweighed this factor. The Court also held that the appellant's guilty plea was a mitigating factor, but that it did not warrant a significant reduction in the sentence. The Court noted that the appellant had committed a large number of offences over a period of time, which demonstrated a pattern of criminal behaviour.

Orders