R v Poloni
[2005] VSCA 177
•18 July 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 252 of 2004
| THE QUEEN |
| v. |
| 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 arrested and interviewed, and responded "no comment" to all allegations put to him. He also refused to assist the police to establish the origin of the seized items. He was bailed to appear at the Heidelberg Magistrates' Court on 18 December 2003. Count 54 related to certain of the items discovered on 30 September. All counts on the presentment after count 54 were committed whilst the appellant was on bail.
On 21 November 2003, the appellant was arrested in South Melbourne driving a stolen 1997 Ford Fairmont sedan. At the time of his arrest, the appellant had in his possession a small quantity of amphetamine, $305 in cash for which no explanation was provided, a Swiss army knife, a large quantity of keys, three torches, a pair of gloves and a screwdriver. This gave rise to charges of possession of a drug of dependence, being in possession of property suspected of being the proceeds of a crime, and going equipped to steal. Upon investigation of the car, a large quantity of property was found, which had been stolen from six vehicles in surrounding suburbs. At interview the appellant admitted stealing the car and using it to find others from which he stole property. He was again released from custody, and committed a number of further thefts, including stealing property from residential premises.
On 17 December 2003, the appellant drove a Ford XR8 car to Mill Park police complex to report to police in accordance with his bail conditions. The car had been stolen from Diamond Creek nine days previously. Shortly afterwards the appellant was arrested at an address in Mill Park. The police searched these premises and found a partly dismantled Ford utility which had been stolen in Watsonia on 27 October. They also found a hydroponic set-up comprising four mature marijuana plants and eight seedlings, located together with a quantity of dried cannabis. This led to one count of possessing a drug of dependence and one count of cultivation of a drug of dependence. Police also found a quantity of Ketamine, which led to a separate count of possessing a drug of dependence.
It is unnecessary to detail further the various crimes to which the appellant pleaded guilty. Prosecuting authorities compiled with the help of police a compendious summary of the crimes on the presentment in numerical and chronological order, together with the value of the items stolen. The sentencing judge appended that summary to his reasons for sentence.
The principal ground of the appeal was ground 4, that the judge erred in determining or calculating the total effective sentence which he had imposed upon the appellant as five years and two months' imprisonment. The judge was faced with a most complex task in sentencing the appellant in respect of 123 offences, made even more difficult, as his Honour pointed out, by the fact that Parliament has not given judges of the County Court a power similar to that given to magistrates to impose aggregate sentences. However his Honour analysed and categorised the appellant's offences into six categories, and then fixed sentences for the various offences in each category and considered issues of concurrency and cumulation within each category. Accordingly, his Honour was obliged to deal with 123 offences as follows -
1.Theft of motor vehicles, of which there were 16 offences, in respect of which the judge imposed a total effective sentence of 28 months (incorrectly expressed as 27 months in paragraph 47 of the sentencing reasons);
2.burglary and theft counts, 10 offences, in respect of which the judge imposed a total of seven months' imprisonment, cumulative upon the 28 months in category one;
3.theft of items having a value of $1,000 or less, 56 offences, in respect of which the judge imposed a total of 10 months' imprisonment, also made cumulative;
4.theft of property of a value over $1,000, 31 offences, in respect of which the judge imposed a further 10 months' imprisonment, also made cumulative;
5.five drug offences, in respect of which the judge imposed a further four months' imprisonment, made cumulative;
6.and five summary charges, on which a further three months' imprisonment was also made cumulative.
It is, I think, perfectly clear that the judge intended to impose a total effective sentence of five years and two months and his method of seeking to achieve such a sentence is quite transparent. It is, however, quite understandable that the difficulty of the sentencing exercise facing his Honour has led to a number of errors. The first of these I have already mentioned, the miscalculation of 27 months in relation to the sentences imposed in Category 1. Mr Holdenson submitted that his Honour had also erred in making later individual sentences cumulative upon sentences imposed on earlier individual counts, such as counts 86, 104 and 118, in circumstances where the sentence imposed on each such count had been "overtaken" or superseded by an overall sentence of, say, four months' imprisonment, imposed in relation to a particular category, and which had then been ordered to be served cumulatively upon a different sentence. There are other difficulties as well. For example, count 36 is correctly referred to in paragraph 35 of the reasons in relation to items stolen the value of which was $1,000 or less. Count 36 is, however, then repeated in paragraph 38 in relation to offences where the value of goods stolen exceeded $1,000. The correct count in paragraph 38 should have been count 35. Then, in sentencing, in paragraph 49 of the reasons, under the heading Category 2, Burglary and Theft counts, his Honour incorrectly included count 80, which related to the theft of a Tommy Armour golf bag, valued at $4,500, and which his Honour again dealt with in paragraph 54, under its correct categorisation. The count in paragraph 49 should have been count 88. Furthermore, no sentence has apparently been imposed at all on counts 5, 97, 103, 114 and 116.
Although some of these matters are very technical, I accept that sentencing error has been established, and that the discretion is reopened.
Ground 2 claimed that the judge failed to give sufficient weight to the appellant's absence of any relevant prior convictions. There is nothing in this ground. His Honour merely said of the appellant's two prior offences that they were "minor matters in the scheme of things and, as explained by your counsel, of little relevance to the present matters".
Ground 3 claims that the judge failed to give sufficient weight to the appellant's pleas of guilty and the stage at which the pleas were entered. Again, there is nothing in the point. The judge specifically referred to the fact that the appellant had pleaded guilty at an early stage, avoiding the necessity for committal proceedings and a trial. Having regard to the number of offences involved, and the value of the property in question, it is plain that a substantially greater sentence might have been imposed had the appellant pleaded not guilty. The judge, I think, accepted all matters put to him in mitigation, querying only, as the prosecutor has put it, the appellant's failure to explain to the police his method of entering and starting the stolen vehicles.
Ground 1 claims that the sentence imposed was manifestly excessive. Reliance is placed on the fact that the course of conduct occurred over approximately six months in circumstances where the appellant was 26 years old, had not previously relevantly offended, had become disillusioned and angry because he had not been paid a substantial sum of money due to him from his work, and had therefore ceased work, had commenced using drugs in significant quantities, soon becoming dependent, and committed these offences in order to sustain his addiction. It was argued that his offending was out of character and evidence was led, both from the appellant's sister and Mr Richard Philip Smith, Program Director of the Raymond Hader Clinic, a drug and alcohol counsellor, that upon release from prison the appellant would be professionally treated for his drug addiction and would be supported by his family. It was argued that the appellant had good prospects of rehabilitation, which had been accepted by the judge. Accordingly, it was submitted that the sentence was manifestly excessive and beyond the available range.
I do not accept this submission. Although errors are to be found in the construction of the sentence, the judge's analysis and categorisation of the offences was in my view correct, no error is to be found in the scheme of concurrency and cumulation which his Honour plainly had in mind, and the overall sentence was in my view appropriate and fair and plainly within range. I would therefore reject each of grounds 1, 2 and 3.
In the circumstances, I would allow the appeal, but purely for the purpose of re-sentencing the appellant with a view to the imposition of the same total effective sentence as that imposed by his Honour on 1 October 2004.
On each count I would impose the same sentence of imprisonment as that fixed by the trial judge, save for counts 88 and the five counts on which no sentence was imposed. On those counts, I would impose the following sentences -
on count 5, three months;
on count 80, six months;
on count 88, three months;
on count 97, four months;
on count 103, four months;
on count 114, two months; and
and on count 116, three months, respectively.
I would set aside the orders and directions for cumulation and substitute the following. I would make the sentence imposed on count 58 (six months' imprisonment) the base sentence. I would then, using the six categories adopted by the sentencing judge, make the following orders -
A.Category 1, theft of motor vehicle. As to counts 3, 8, 57, 85, 96, 102, 113, 77, 81, 83, 84 and 89, I would order that in each case the sentence imposed be served cumulatively upon the sentence imposed on count 58 and upon each other.
B.Category 2, burglary and theft. As to counts 16, 19, 90 and 111, I would make orders for cumulation upon count 58 and upon each other.
C.Category 3, theft of items valued at $1,000 or less. As to counts 1, 55 and 87, I would make orders for cumulation upon count 58 and upon each other.
D.Category 4, theft of items valued at more than $1,000. I would order that the sentence imposed on count 10 be served cumulatively on count 58 and upon the other cumulating offences.
E.Category 5, the drug offences. As to counts 51 and 117, I would make like orders for cumulation.
F.Category 6, the summary charges. As to charge 118 and the charge of handling stolen goods, I would make like orders for cumulation.
Save as aforesaid, all sentences should be served concurrently.
The total effective sentence would therefore be 62 months' imprisonment and I would direct that the appellant serve a minimum of three years' imprisonment before becoming eligible for parole.
VINCENT, J.A.:
I agree.
ASHLEY, J.A.:
I agree.
CHARLES, J.A.:
The Court's orders therefore are in the following form.
The appeal against sentence is allowed.
The sentences imposed on each count and charge are left standing, save that on counts 5, 80, 88, 97, 103, 114 and 116 the following sentences are imposed -
on count 5 - three months',
on count 80 - six months',
on count 88 - three months',
on count 97 - four months',
on count 103 - four months',
on count 114 - two months' and
on count 116 - three months' imprisonment respectively.
The orders for cumulation of sentence are set aside. In lieu thereof the Court makes the following orders for cumulation of sentence.
Taking the sentence imposed on count 58, six months' imprisonment, as the base sentence, the Court orders that the sentences imposed on each of counts 1, 3, 8, 10, 16, 19, 51, 55, 57, 77, 81, 83, 84, 85, 87, 89, 90, 96, 102, 111, 113 and 117 and charge 118 and the charge of handling stolen goods be served cumulatively upon the sentence imposed on count 58 and upon each other. Save as aforesaid, all the remaining sentences are to be served concurrently.
The total effective sentence is therefore 62 months' imprisonment. The Court directs that the appellant serve a minimum of three years' imprisonment before becoming eligible for parole.
The Court declares that, as at today's date, the period of 582 days be reckoned as already served under the sentence and directs that the making of this declaration and its details be noted in the records of the Court.
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