R v Shaw
[2000] VSCA 218
•1 November 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 277 of 2000
| THE QUEEN |
| v. |
| KATHRYN JOAN SHAW |
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JUDGES: | PHILLIPS, C.J., BROOKING, J.A. and EAMES, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 November 2000 | |
DATE OF JUDGMENT: | 1 November 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 218 | |
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Criminal law – Sentence – Whether manifestly excessive – Whether disparity with sentence of co-accused – Series of burglaries, thefts and handling offences – Prisoner a security guard – Serious breach of trust – Disparity as to one count – Prisoner re-sentenced.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. B. Kayser | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. P. Morrissey | Clarebrough Pica |
PHILLIPS, C.J.:
I shall ask my brother Eames to give the first judgment in this matter.
EAMES, A.J.A.:
The applicant, Kathryn Joan Shaw, pleaded guilty in the County Court to three counts of burglary, three counts of theft and four counts of handling stolen goods. The maximum penalty for burglary was 10 years' imprisonment, as was the penalty for theft. The maximum penalty for handling stolen goods was 15 years.
The applicant was arraigned with one Bill Rizos who was jointly charged with two of the counts of burglary, two of the counts of theft and one count of handling with which the applicant was herself charged. Rizos pleaded guilty to those five counts and, in addition, pleaded guilty to a further 38 counts on which he was presented alone. Those 38 counts comprised 15 counts of burglary, one count of attempted burglary, 19 counts of theft, two counts of handling stolen goods, and one count of damaging property. In addition, Rizos had five summary charges taken into account.
After hearing submissions, and taking evidence, on sentence the learned sentencing judge reserved to consider sentence and released the applicant on bail pending sentence. On 18 September 2000 his Honour sentenced both the applicant and Rizos to terms of imprisonment.
On each of two counts of burglary (counts 24 and 26) the applicant was sentenced to six months' imprisonment, and on one count of burglary (count 41) she was sentenced to 12 months' imprisonment. On two counts of theft she was sentenced to three months' imprisonment; on one count of theft to two months' imprisonment. On one count of handling she was sentenced to six months'
imprisonment (and that, last mentioned, sentence was ordered to be served cumulatively with the 12 months sentence for burglary). On one further count of handling she was sentenced to two months' imprisonment and on two further counts of handling she was sentenced to one month imprisonment.
The total effective sentence of the applicant was 18 months' imprisonment. The learned sentencing judge ordered that 12 months of that sentence be suspended for a period of two years. The applicant was thus required to serve an immediate sentence of six months' imprisonment.
As will emerge when I discuss the grounds of appeal, the outcome for Rizos is relevant to the present application. Rizos was sentenced to a total effective sentence of four years' imprisonment and he was required to serve two years and three months before being eligible for parole. As to the five counts on which Rizos was jointly presented with the applicant the sentence for Rizos was more severe in each instance save for count 41, a charge of burglary, for which Rizos received the same sentence as the applicant, namely, 12 months' imprisonment.
The applicant filed an application for leave to appeal on 25 September 2000 which identified only one ground, namely, that the sentence was manifestly excessive.
By leave granted by the Registrar of Appeals on 27 March 2000 three additional grounds of appeal were added, as follows:
Ground 2:the learned sentencing judge erred in failing to give appropriate weight to principles of rehabilitation;
Ground 3: the learned sentencing judge erred in imposing a sentence disparate with that imposed upon the co-offender Rizos;
Ground 4:the learned sentencing judge erred in regarding the applicant's offences as constituting "a very serious example of the crimes of burglary, theft and receiving".
At the time of the offences, the occupation of both the applicant and Rizos was that of security guard. The offences were committed against a large number of business premises, and also the premises of one Government Department, these being premises which Rizos and the applicant were engaged to protect.
In the case of Rizos the offences spanned a period from 1 February 1998 to 23 December 1999. From February 1998 until May 1999 Rizos was an employee of a company which had a licence from Chubb Security to provide security services in the name of Chubb. In May 1999 Rizos ceased employment with his employer and instead commenced his own business, having taken over one security round from his employer and thereafter becoming a sub-contractor to or licensee from Chubb.
The applicant had been working as a licensed security guard for some five years prior to her offences. Initially she worked for Group Three but then commenced with Chubb Protective Services in February 1998. It was while working for Chubb that she met and formed a relationship with Rizos. Another employee of Chubb, one Chris Zurek, was known to them both, and was also subsequently charged with offences of dishonesty. From the time that Rizos became so engaged the applicant became the employee of Rizos and worked with him as a security guard over the premises covered by that round.
As that chronology discloses, the offences committed by Rizos commenced more than a year before the offences of the applicant commenced.
The applicant's offending only started after Rizos had commenced his sub-contracting arrangement with Chubb and after Rizos had employed the applicant as one of the security guards for the premises on his round. The applicant's offending commenced soon after she entered a de facto relationship with Rizos.
Because the applicant and Rizos had keys, and the security codes, to the premises they were meant to be guarding, it was very simple for them to steal from those premises. Indeed, many of the companies had no idea that property had been stolen from their premises and only learned that that was so when stolen property was located at the separate premises of the applicant and Rizos during police investigations.
The extent of the breaches of security was very substantial, particularly in the case of Rizos. In a very long record of interview Rizos admitted having entered premises for unlawful purposes on so many occasions that the Director of Public Prosecutions in framing the presentment adopted the course of presenting Rizos on some counts on what was said to be a representative basis. By that it was said that in the case of Rizos the single count reflected many and repeated instances of dishonesty occurring at the same premises named in the count. In Rizos' case some twenty of the counts on which he was presented were representative counts in that sense.
In one instance (count 25), the applicant was herself presented on a representative count. That count related to the theft of property to the value of $8,000 from the Department of Natural Resources and Environment, between 1 July 1999 and 22 December 1999. In the agreed statement of facts it is said of this count that it "acknowledges Shaw's inculpation in a common purpose with Rizos and covers the many thefts Rizos has admitted ... ." Rizos was presented on some ten counts relating to theft from this Department dating from July 1998. The summary of evidence discloses that the property to which the charge relates included items such as computers, radio communication equipment and camping and fireline equipment.
It is convenient to deal first with ground 3 of the appeal grounds, which is a complaint of disparity in the sentences imposed on the applicant and Rizos.
The complaint of disparity which was argued by counsel for the applicant was initially advanced by reference to the overall effect of the sentences imposed respectively on the applicant and Rizos. Thus, it was submitted that the total sentence of 18 months with only twelve months suspended for the applicant disclosed undue disparity to the overall effect of the sentence of four years with a non-parole period of two years and three months which was imposed on Rizos.
It was submitted that when regard was had to the length of the period of offending of Rizos, the value of the property stolen in his case, the fact that he was a sub-contractor to Chubb and employed the applicant and his reduced prospects of rehabilitation, on the one hand, in contrast to the situation of the applicant, on the other hand, the overall sentences betray error in the sentencing process.
The applicant and Rizos were jointly presented, as I have said, on five counts. A complaint as to disparity between the sentence of the applicant and that of Rizos is also made specifically (in addition to the general submission which I have just dealt with) in respect of count 41. It could not be said that the other sentences in themselves display disparity, as in every other instance the sentence imposed on the applicant for a joint offence was substantially less than that imposed on Rizos. Indeed, the complaint of disparity is made as to count 41 notwithstanding the fact that the same sentence was imposed on that count. As was held by Dawson and Gaudron, JJ. in Postiglione v. R.[1], discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence, but rather is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the offenders, and their different degrees of criminality. It is submitted that, in common with the other counts, the sentence of the applicant on count 41 should have been less, indeed, no more than half that imposed on Rizos, and the sentence imposed therefore reflects error in the sentencing process.
[1](1997) 189 C.L.R. 295, at 301-302.
It is relevant to note, at this point, that of the five counts with which the applicant and Rizos were jointly presented two of the counts of burglary (counts 26 and 41) reflected a single instance of unlawful entry on the part of the applicant but repeated unlawful entries on the part of Rizos. On count 26, the charge of burglary related to events taking place over a period of only three days. For that offence Rizos was sentenced to 12 months' imprisonment but the applicant to six months' imprisonment. Naturally enough, no complaint, on grounds of disparity, is made about that sentence.
Count 41, however, alleged burglary of premises of Willow Ware Australia Pty Ltd between 1 June 1999 and 23 December 1999. In the case of the applicant, only one instance of unlawful entry was admitted in that period, and the Director of Public Prosecutions accepted that to be so. In the case of Rizos, however, the charge was a representative one reflecting numerous unlawful entries over that period. Both Rizos and the applicant were sentenced to 12 months' imprisonment for count 41. The fact that the same sentences were imposed on that count raises a specific complaint of disparity under ground 3 of the grounds of appeal.
That complaint of disparity is given further weight by reference to the outcome of count 42, which, again, was a joint charge. That charge was of theft from the same premises to which the count of burglary related in count 41, namely, Willow Ware Australia Pty ltd, and related to the same period, from 1 June 1999 to 23 December 1999. Once again, that was a representative charge in the case of Rizos, but not for the applicant. The property stolen from Willow Ware, being plastic ware, was valued at $1004. Unlike the sentence imposed on count 41 (the burglary count) the sentence of imprisonment imposed on Rizos on the theft count, count 42, was greater than for the applicant. Rizos was sentenced to six months' imprisonment on count 42 and the applicant to three months' imprisonment.
On behalf of the applicant it was submitted that as was the case with all of the other joint counts, her sentence on count 41 should have been less than that of Rizos.
His Honour, in his sentencing remarks, did not explain why the sentence on count 41 was the same for both the applicant and Rizos, and there is no obvious explanation why on that joint charge, alone, the applicant's sentence was not less severe than that imposed on Rizos.
The total value of the property unlawfully acquired by Rizos over the extended period of offending to which his joint and separate counts related was difficult to quantify but the Director of Public Prosecutions accepted the figure of $108,000. In the case of the applicant, whose offending was over a shorter period, the sums alleged were smaller. The largest sum identified in her case was the agreed value of $8,000 for items stolen from the Department of Natural Resources & Environment and to which count 25 relates. Although she is charged alone on that count, the Crown Prosecutor in the court below did not challenge the contention on behalf of the applicant that Rizos was involved in those thefts. The agreed summary of facts expressly acknowledged that the property to which count 25 relates was actually removed from the premises by Rizos, but with the applicant engaged in a common purpose. Count 25 is the sole instance of a representative count being brought against the applicant and relates to thefts from the Department over a period from 1 July to 22 December 1999.
As was explained by Callaway, J.A. in R. v. Taudevin[2] the appellate court intervenes on account of disparity only where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done[3].
[2][1996] 2 V.R. 402, at 404.
[3]See, too, Postiglione v. The Queen (1997) 189 C.L.R. 295; R. v. Nguyen [2000] VSCA 189, at paras [25]-[27] per Phillips, C.J.
It falls then to consider the respective positions of the applicant and Rizos. Neither had prior convictions. Rizos was 23 or 24 years of age at the time of his offending; the applicant's offending commenced when she was aged 39. She is now 40, and Rizos is now 25 years of age. Rizos is a single man, the applicant has four children from two relationships, the ages of the children ranging from 12 years to 21 years.
In the case of count 41 the period to which the count relates is the same for both the applicant and Rizos. It was the case for the Crown, however, that even when only Rizos entered premises for dishonest purposes the applicant would be present nearby, in the security vehicle, and was there for a common purpose with Rizos. Specifically, as noted in the summary of evidence (and not disputed by counsel for the applicant), the Crown contended that the role of the applicant was generally to stay in the car and to keep watch while Rizos would enter the premises and remove property.
In his sentencing remarks, his Honour observed that the most serious aggravating factor was "that you were each employed as trusted security personnel charged with and paid for the task of protecting the premises which you burgled". His Honour continued, at p.69:
"In your case, Rizos, in relation to the premises of the Department of Natural Resources, you acknowledge repeated break-ins. Much of your conduct is not particularised in the presentment; to do so would have presented a formidable task for a criminal pleader. A number of counts on the presentment were to be treated as representative of repeated criminal conduct and there can be no doubt that a level of planning and continued deceitful concealment of your activities was involved in this offending; and the sheer multiplicity of offending and the length of time over which it occurred all require this case to be treated as a very serious example of the crimes of burglary, theft and receiving, particularly is this consideration applicable in your case, Rizos."
Having regard to the fact that the duration of the offending by Rizos, overall, predated that of the applicant to a significant extent, that his overall offending was more extensive than that of the applicant, and that the sentences for all other joint offences reflected the differences in their respective positions, and that the value of the stolen property to which count 41 relates is significantly less than that of count 25, on which the applicant was presented alone, it is difficult to see why the sentence under count 41 should have been the same for both offenders, even allowing for the fact that the period of the offending conduct for that count was the same, and that the applicant was engaged in a common purpose with Rizos.
His Honour did not explain why identical sentences were imposed on this count, alone. When generally considering the submissions that an immediate gaol term not be imposed, his Honour said of the applicant that:
"It is obvious that the sentence in your case should be less onerous than in the case of your co-accused, however I regard the offending as too serious not to be visited with some deprivation of your liberty."
In the absence of explanation by the learned sentencing judge I am drawn to the conclusion that the sentence on count 41 does reflect an inappropriate disparity, or perhaps put another way, fails to adequately reflect the disparity between the positions of Rizos and the applicant, and in so failing demonstrates error in the sentencing process.
There being error as to the sentence imposed on that count, in my opinion, then it is my view that this Court should now re-sentence the applicant on that count. I will turn before dealing with that question to consider the broader complaint of disparity which was directed to the overall effect of the respective sentences of the applicant and Rizos.
In Postiglione v. The Queen[4] Kirby, J. held that the focus of attention of an appellate court should be not on the nominal sentence but upon the actual punishment which it appears likely the respective prisoners will undergo. Due allowance should be made for their respective criminality, their differing antecedents, their personal circumstances and mitigating factors. If after making allowance for all of those factors the disparity is clearly unjustifiable then the appellate court must intervene. Similarly, Dawson and Gaudron, JJ. held[5] that all components of the sentences, not merely the head sentences, had to be considered when assessing the complaint of disparity.
[4]supra, at 338.
[5]Ibid, at 302.
In my opinion, a comparison of the sentences in overall terms does not lead me to conclude that inappropriate disparity is disclosed. Having regard to the factors which distinguish the situation of the two offenders it cannot be said that the overall sentences (save for what I have said earlier as to count 41) are such as to engender a justifiable sense of grievance, and save for the error in the sentence on count 41 this ground in my opinion has not been made out.
I turn then to the other grounds of appeal. The complaint in ground 1 that the sentence was manifestly excessive may be taken together with the complaints raised by grounds 2 and 4.
In his submissions to the learned sentencing judge counsel for the applicant urged that any sentence of imprisonment be wholly suspended. Counsel acknowledged that the fact that the offences occurred in circumstances of breach of trust meant that the question of general deterrence had to be relevant, and militated against the outcome which was sought.
The learned sentencing judge had before him a report from Mr Jeffrey Cummins, a consulting clinical and forensic psychologist, and he received written character testimonials from the applicant's general practitioner, from the applicant's mother and from her eldest sister. A note from the applicant was also filed. Additionally, a close friend of the applicant gave evidence.
There was a good deal of material before the sentencing judge which suggested that the applicant was unlikely to re-offend. The character evidence demonstrated that the applicant had hitherto enjoyed a reputation amongst her friends and family for hard work and honesty and had engaged in community activities as a parent. Neither of her parents, nor her siblings, had any history of offending. The applicant had no prior convictions. She had left school at age 14 to support her family and had worked throughout her life. She married at age 18 and had one child before the marriage failed. Her husband later died. She then commenced a long-term relationship which also failed after she bore three children, but her previous partner - the father of those three children - attended court to support the applicant.
The applicant was working as a security guard when she met Rizos. She was 39, he 23. Despite the age disparity they formed a close relationship. She told Mr Cummins that she loved Rizos, and would not have stolen anything had she not been in his company. She said that she had known that what she was doing was wrong but said she went along with it because she loved Rizos. Mr Cummins reported that the applicant was a person of low self-esteem and had a strikingly dependent and unassertive interpersonal style, and was slightly below average intelligence.
As a result of her predicament, Mr Cummins said, she exhibited symptoms of depression of moderate severity. Mr Cummins said that in his opinion she was genuinely and significantly remorseful, an opinion confirmed by the other evidence.
The stolen property included items such as toys, sugar, a Christmas tree and decorations, sleeping bags, blankets and other items kept for her own use, but included expensive electrical items also. She was not involved in the sale of any items or in profiting from their sale.
The applicant's 12-year-old daughter suffers a number of medical conditions including epilepsy, asthma and urinary tract infections as well as medical difficulties attendant on the onset of puberty. It was not submitted to his Honour, nor before this Court, that the difficulties which will confront the applicant's daughter by virtue of her mother's imprisonment would constitute exceptional circumstances justifying a non-custodial sentence when a custodial sentence was otherwise appropriate[6]. The applicant pleaded guilty at the committal and made full admissions to the police investigators.
[6]See R. v. Young, unreported, Court of Criminal Appeal, 2 June 1987.
There are many factors which favour the applicant on sentence and which suggested that she had good prospects for rehabilitation.
As against those factors, however, the offences were not spur of the moment events but continued over many months. The motive was greed. The learned sentencing judge observed that, when arrested, "a disturbingly large quantity of stolen property was found at your residence". Counsel for the applicant contended that the learned sentencing judge failed to give appropriate weight to the principles of rehabilitation and overstated the seriousness of the offence by characterising it as "a very serious example of the crimes of burglary, theft and receiving". In my view, his Honour's remarks were entirely appropriate.
These were, indeed, very serious instances of a breach of trust. It is difficult to imagine how it could be more serious an instance than where security guards, employed for the very purpose of providing protection against theft, steal from their clients, and do so over many months. The case required that general deterrence be to the forefront of sentencing considerations and the very experienced sentencing judge recognised the sentencing considerations which had to be weighed up in this case.
His Honour did not expressly, or in terms, discuss the applicant's prospects of rehabilitation in his sentencing remarks. In my opinion, that fact is not remarkable because it must have been quite plain during the course of submissions, and seems to me to have been implicit in those discussions, that both counsel and his Honour recognised that the applicant's prospects of rehabilitation were of importance and it was implicit from the approach which his Honour adopted that he accepted that those prospects were good. Indeed, the submissions were couched in a manner which reflected the fact that on all sides it was understood that the issue was whether the factor of general deterrence outweighed the factor of the favourable prospects of rehabilitation to a degree that made it impossible to wholly suspend a sentence of imprisonment. Mr Morrissey submitted that his Honour addressed a quite separate issue, namely, the question of mercy, rather than the question of rehabilitation, but in my opinion the passages to which we were referred do not indicate that the one factor was addressed to the exclusion of the other. In my opinion his Honour well appreciated the relevant sentencing considerations and had the task of balancing those considerations. In my opinion, save for count 41, which disclosed an inappropriate disparity in sentencing, no error has been shown in the approach which his Honour adopted. In particular, the sentences imposed were not otherwise manifestly excessive, and did not err in the manner suggested in grounds 2 and 4.
Although the sentences generally were said to be manifestly excessive, there were two particular factors which were addressed on the subject of manifest excess by counsel. It was contended that the complaint that the sentences were manifestly excessive is made out specifically with respect to the sentence on count 44. That was a count of handling stolen goods, being a television set, a video cassette recorder and a vacuum cleaner. All of those items were found by police in the flat of the applicant. It was submitted that the sentence of 6 months' imprisonment for this offence was itself manifestly excessive, or at least became so by virtue of the order that it be cumulative on the sentence of 12 months for count 41.
Counsel submitted that the sentence on this count, and the order for cumulation, treated the applicant as though she was in the business of handling stolen property, and failed to have regard to the evidence of her subordinate role and the influence of Rizos, and to the fact that all of the goods were recovered.
In my opinion, the sentence on count 44 was within the range appropriate for this offence, and having regard to the personal benefit gained by the applicant from these goods the order for cumulation was one properly falling within the discretion of the sentencing judge.
The other specific contention addressed under ground 1 was that the sentencing judge was said to have failed to adopt the principle of imprisonment being a last resort, and did not adopt the proper approach to sentencing when suspending 12 months, only, of the sentence of imprisonment which was imposed. Counsel referred to Dinsdale v. The Queen[7], a decision of the High Court delivered on 12 October 2000.
[7][2000] HCA 54.
Mr Morrissey submitted that a sentence of imprisonment should not have been ordered, at all, unless and until the judge was satisfied that it was not appropriate that any other sentencing option be adopted. That approach was consistent with the statements of the court in Dinsdale and with s.5(3) of the Sentencing Act 1991.
Counsel submitted that his Honour failed to treat imprisonment as the sentence of last resort and failed to apply proper principles when suspending portion of the sentence. Furthermore, it was submitted, the proper approach would have demonstrated that if imprisonment was required at all then a wholly suspended sentence was the only sentence which would not be manifestly excessive.
In my opinion, no error in approach in these respects is evident, at all, in the sentencing remarks. It was plainly open to his Honour to conclude, as he did, that no option apart from a sentence of imprisonment was appropriate.
It was submitted, however, that the sentence offended principles of totality and proportionality, particularly by the cumulation of the sentences on counts 41 and 44. The relevant principles are set out in the judgment of Ormiston, J.A. in R. v. Grabovac[8]. In my view, no error in application of those principles has been demonstrated in this case, and, again, it has not been demonstrated that the sentence is manifestly excessive (save, once again, for the sentence on count 41).
[8](1997) 92 A.Crim.R. 258, at 270, 274-5.
The grounds of appeal being grounds 1, 2 and 4, in my opinion, are not made out.
Given that, in my view, it is necessary to re-sentence the applicant on count 41, I would propose that the sentence below on that count be varied so as to set aside the sentence on count 41 and in lieu thereof order that the applicant be sentenced to six months' imprisonment. I would confirm the sentences imposed on the other counts, thus resulting in a total effective sentence of 12 months' imprisonment, and I would further propose that eight months of that sentence be suspended for a period of two years.
PHILLIPS, C.J.:
I agree with the conclusions of Eames, A.J.A., and I further agree with the sentence his Honour has proposed.
BROOKING, J.A.:
Having regard to the extremely serious abuse of the applicant's position of trust, I would myself in re-sentencing her have made cumulation orders leading to
the same total effective sentence as that resulting from the order made below, and I would have fixed upon the same period as the learned judge for the unsuspended part of the sentence, which I regard as, if anything, a merciful outcome. The practical result of this would of course have been that the applicant's sentence would not have been varied.
PHILLIPS, C.J.:
Kathryn Shaw, the Court proposes to sentence you to a partially suspended sentence of imprisonment, and the law requires me to explain to you the purpose and effect of the suspension order. The purpose and effect of the suspension order is to give you, after you have served a custodial period of four months, conditional freedom - conditional in the sense that if, during the operational period of the sentence, which is two years from 18 September 2000, you commit another offence punishable by imprisonment, within or outside Victoria, you will be required to again attend court, under arrest if need be, and you may be required to serve the whole of the balance of the sentence. For your information, the crime of theft is an offence punishable by imprisonment. Do you understand that?
APPLICANT:
Yes.
PHILLIPS, C.J.:
The orders of the Court are:
The application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed. The sentence imposed on the applicant in the court below is set aside as to part in that the sentence on count 41 is set aside and in lieu thereof the applicant is sentenced to be imprisoned for six months. The cumulation direction in the court below is set aside and in lieu thereof the Court directs that the whole of the sentence on count 41 is to be served cumulatively upon the sentence on count 44. The sentences on the other counts are confirmed, making for a total effective sentence of 12 months' imprisonment. The Court orders that eight months of that sentence be suspended for two years from 18 September 2000.
The Court declares that the period of 45 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.
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