R v Schembri
[2005] VSCA 32
•7 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 37 of 2004
| THE QUEEN |
| v. |
| ADAM ERNEST SCHEMBRI |
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JUDGES: | VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 February 2005 | |
DATE OF JUDGMENT: | 7 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 32 | |
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Criminal law - Sentencing - Application for leave to appeal - Substantial thefts of property - Considerations applicable - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Carlin | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr T. Kassimatis | Victorian Legal Aid |
VINCENT, J.A.:
I will invite Cummins, A.J.A. to deliver the first judgment in this matter.
CUMMINS, A.J.A.:
This is an application for leave to appeal from sentences imposed by His Honour Judge Morrow in the County Court on 27 February 2004. The applicant, Mr Adam Ernest Schembri, before his Honour had pleaded guilty to four counts ‑ two counts of theft, one of damaging property and one of possession of a drug of dependence namely methylamphetamine. His Honour sentenced the applicant on count 1 to one year's imprisonment, on count 2 to three years' imprisonment, on count 3 to one month's imprisonment (all of which were concurrent terms) and on count 4, 14 days' imprisonment, which was cumulative, making a total effective sentence of three years and 14 days' imprisonment. His Honour directed that the applicant serve a minimum term of 20 months before becoming eligible for parole.
An application for leave to appeal against sentence was filed on 10 March 2004. That application stated that the ground of it was "that the learned sentencing judge placed too much weight on the principles of general deterrence and failed to give sufficient weight to the applicant's prospects for rehabilitation".
On 3 September 2004, a s.582 hearing was before the President on that ground and the learned President refused leave.
Then on 28 January 2005, that is 11 months from the date of sentence, a notice was filed of intention to substitute grounds of appeal. The notice sought the following grounds to be substituted in place of the ground of 11 months' standing. Those sought grounds were ‑
“1.The learned sentencing judge erred by finding that in the circumstances of the applicant's case ‑
(a)general deterrence outweighed factors in mitigation; and
(b) the seriousness of his offending compelled a reduction of significance for the applicant's youth.
2.The learned sentencing judge erred by having no or insufficient regard, or attaching insufficient weight, to the applicant's matters personal; in particular, the judge failed at all or sufficiently to have regard to –
(a)the suicide deaths of the applicant's father and brother and the effect on the applicant in particular of the latter;
(b)the applicant's drug addiction; and
(c)his diagnosis of ADHD.
3. In all the circumstances ‑
(a) the individual sentence imposed on count 2;
(b) the total effective sentence; and
(c) the non‑parole period
was manifestly excessive.4.The learned sentencing judge erred by attaching no or insufficient weight to the applicant's -
(a) youth;
(b) admissions and early plea of guilty;
(c) prospects of rehabilitation; and(d)cooperation and assistance in the prehension of his co‑offender."
I must say I deplore the late filing - in this case of nearly a year after the date of sentence and ten months after the initial application and five months after the s.582 refusal - of a raft of further grounds. In my view, such late applications set the Rules at nought, preclude the utility of a Judge's report, adversely affect the preparation by hearing judges and generally are to be resisted. I am conscious of the exigencies of funding and briefing involved in applications for leave to appeal, but the Rules have a very real purpose and in my view ought be fulfilled. In the event, this Court refused leave to substitute grounds as sought. However, fortunately, the grounds which are sought, apart from ground 3, were in truth particulars of the present ground but more elaborated; and ground 3, the manifest excessive ground, was a corollary of the initial ground. Thus the arguments, which were very ably marshalled by Mr Kassimatis on behalf of the applicant, were heard in any event.
I turn to the circumstances of the offences.
The applicant was 21 years of age at the time of the offence, he having been born on 20 April 1982, and the offences occurring on 16 August 2003. On Saturday 16 August 2003, at approximately 1.00 a.m., the applicant attended outside Beaurepaires Tyres, Geelong Road, Hoppers Crossing, where he smashed the passenger side window of a parked International prime mover truck. He smashed the ignition lock and barrel and started the vehicle and drove from the premises. That conduct constitutes count 1, the theft of the International prime mover. The prime mover was valued at $60,000.
At approximately 6.40 a.m. on the same day the applicant drove the stolen prime mover to a transport company premises in Industrial Drive, Sunshine. He reversed the prime mover and attached to it a trailer, which was at the time laden with two shipping containers parked in the driveway of the premises. The trailer and shipping containers were due to be transported late that morning. The containers were fully loaded with goods to be moved interstate and were marked accordingly by yellow flags. The applicant had knowledge of the trucking industry from previous employment in it. The value of the trailer was $40,000 and the value of the property contained in the two containers was over a quarter of a million dollars ‑ thus, of course, a larger sentence on count 2 than on count 1.
At approximately 7.00 a.m. the applicant drove the vehicle, with its containers, to East Keilor where he removed the UHF radio and the tool box from the truck. He removed the owner's identification from the side of the truck by scraping those details with a razor blade. Some damage was also caused to the internal aspect of the vehicle. That damage constitutes count 3, which was to the value of $7,200.
A short time later a male co‑offender attended at those premises and met with the applicant. The applicant placed the stolen trailer and tools in the vehicle which was being driven by the co‑offender. The applicant then drove from the location in East Keilor and was followed by his co‑offender outbound along the Calder Highway. The vehicle driven by the co‑offender broke down and it was that circumstance which, despite the plans of the applicant, led to his arrest. That vehicle broke down on the highway at Gibson South and, accordingly, the applicant drove to a truck stop in Gisborne South and waited for the co‑offender to reach it. Unfortunately for this plan, the manager of the premises from which the theft initially took place, and who was aware of the theft of the trailer and the containers, was driving along the Calder Highway and observed the presence of the vehicle with its stolen property. The applicant was with the vehicle at the time. The owner immediately contacted police and sat off the stationary prime mover pending the arrival of the police. A short time later police attended the scene, the applicant ran from the truck when the police approached him but was chased by the police and was arrested a short distance away. The applicant was placed in custody.
The police examined the scene and located a plastic security tag from a container on the ground alongside the truck. A search of the truck located a packet of cigarettes containing a clear plastic bag of white rock, later admitted to be methylamphetamine, and a small glass smoking pipe was located in the centre console. That constitutes count 4, the possession of drug of dependence.
The containers were inspected and it was ascertained that no property had yet been removed from inside the containers at that time. That is unsurprising as the plan was in its early stages when it was intercepted by the astute observation of the owner arising from the breakdown of the following vehicle with the co‑offender within it.
The applicant made full admissions to police and was entirely cooperative, having been caught, and also assisted in the apprehension of the co‑offender by providing information.
As I have said, the applicant was 21 years of age at the time of the offences. He had a number of prior convictions. None was for dishonesty; none involved a sentence of imprisonment. However, of the convictions, which were eight in number, he was at the time of these offences on a 2‑year community‑based order imposed in the Western Australian District Court at Perth on 28 January 2003 in relation to the possession of a prohibited drug with intent, and a 12‑month good behaviour bond at the Sunshine Magistrates' Court on 8 April 2003 for street offences including unlawful assault. He had a number of firearm offences in his prior convictions, but none of the prior convictions were of a substantial nature nonetheless.
Mr Kassimatis, on behalf of the applicant, rightly focussed in particular on two aspects. One was the youth of the offender - he was but 21 years of age at the time - and the second was a specific finding by his Honour, and clearly open to him, that the applicant had reasonable prospects for rehabilitation. Further, Mr Kassimatis submitted that there was a specific error by his Honour in the finding made in paragraph 14 of his Honour's reasoning that "general deterrence is a factor which in the circumstances of this case outweighs factors in mitigation."
Ms Carlin for the respondent pointed to the prior convictions of the applicant in this particular respect: his present offending was in breach of two prior orders, a circumstance relevant to rehabilitation; and that the offences were done in a planned, premeditated way in the anticipation of very substantial monetary reward.
I have had the benefit of reading the sentencing remarks of the learned judge and I must say I can perceive no error in his Honour's reasoning; nor indeed in the sentences imposed. His Honour clearly took into account the youth of the applicant, as indeed his Honour was obliged to do. Further, his Honour took into account, clearly, the very unfortunate history of the applicant, "marred" (a term used by his Honour) by the suicide of the applicant's brother eight years before and by the suicide of his father in 1988, both of which matters, particularly the latter, having affected the applicant, most understandably, very seriously indeed. His Honour also took into account the evidence and evidentiary material in relation to the attempts of the applicant to deal with his addiction. His Honour, in my view, showed proper sensitivity to those matters and also, in my view, as the sentences demonstrate, gave them due and proper weight. His Honour rightly described the offences as planned, premeditated and carried out in such a manner that detection would have been difficult. His Honour rightly referred to the value of the property concerned. His Honour looked holistically at the circumstances of the very difficult life of the applicant previously ‑ his addiction, his reasonable prospects for rehabilitation and, of course, centrally, his youth. His Honour did not mention the assistance to the investigating officers in relation to the co‑offender but plainly it was implicit in his reasoning and it was not the primary point in any event.
His Honour concluded, as I have said, that general deterrence was a factor which outweighed factors in mitigation. In my view that reasoning is unexceptional. His Honour did not dismiss the factors in mitigation; on the contrary, by his careful address to those matters in paras. 10‑13, it is apparent that his Honour gave them anxious and careful consideration. But his Honour was entitled, given the very serious example of theft which was involved in this case in counts 1 and 2, including its character as being planned, premeditated and likely to be difficult to detect, to come to the conclusion that he did, namely that looking at the matters synthetically, general deterrence outweighed those matters. It did not obliterate them but outweighed them.
It is apparent that while every proper acknowledgement should be given to the value of the applicant pleading guilty, as indeed his Honour did, having said that that was appropriate for the saving of court time and community expense and also was "an indication of remorse", nonetheless the applicant was caught red‑handed in the middle of the consequences of the commission of serious offences and in any practical sense there was little option open to him but to seek a reduction properly for his plea of guilty.
In all the circumstances, I consider that his Honour did direct himself to the
proper matters to be considered, he did synthesize them appropriately, and far from finding any error in his Honour's reasoning, or in the sentence imposed, I would agree with it.
For those reasons I would refuse the application for leave.
VINCENT, J.A.:
I also am unable to detect any error of either commission or omission in his Honour's sentencing remarks in this case. Specifically, I am unpersuaded that he fell into error in his approach to the relative weighting attributed by him to general deterrence and youth in the particular circumstances. Nor can any such error be inferred, in my view, from the sentence imposed.
For the reasons otherwise given by Cummins, A.J.A., I would dismiss this application.
NETTLE, J.A.:
I agree with Cummins, A.J.A. for the reasons that he gives that the application should be dismissed.
VINCENT, J.A.:
The order of the Court is that this application is dismissed.
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