R v Solak
[2001] VSCA 129
•13 August 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 357 of 2000
| THE QUEEN |
| v. |
| DEREK SOLAK |
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JUDGES: | WINNEKE, P., BROOKING and BUCHANAN, JJ.A. | |
WHERE HELD: | BENDIGO | |
DATE OF HEARING: | 13 August 2001 | |
DATE OF JUDGMENT: | 13 August 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 129 | |
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Criminal law - Sentencing - Whether sentences imposed upon applicant "manifestly disparate" from those imposed upon co-offender - Whether sentences "manifestly excessive" having regard to mis-statement of maximum penalties for two of the offences - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A.Coghlan, Q.C. and Ms K.E. Judd | Solicitor for Public Prosecutions |
| For the Applicant | Mr D. McKenzie and Ms F. Stewart | Victoria Legal Aid |
Following a trial that took place in the County Court in October of last year, the applicant was convicted of a number of counts of theft, making a false document, handling of stolen goods and obtaining by deceit the proceeds thereof, over a period extending from January until May 1997. These offences were counts 3 to 9 inclusive on a presentment to which the applicant had pleaded not guilty. The jury had acquitted him of stealing, alternatively receiving stolen goods, in July 1996, which were counts 1 and 2 on the presentment.
Following a plea in mitigation, the trial judge sentenced the applicant on 8 November of last year as follows:
on count 3, making a false document - two years' imprisonment;
on count 4, handling - one year's imprisonment;
on counts 5 and 6, theft and obtaining by deceit - three years' imprisonment on each count;
on counts 7, 8 and 9, handling - one year's imprisonment on each count.
His Honour ordered the sentences to be served concurrently. The total effective sentence was therefore one of three years' imprisonment. His Honour directed the applicant to serve a term of 18 months' imprisonment before becoming eligible for parole.
The applicant, who was 27 years of age when the offences were committed and is now 31 years, admitted seven previous convictions from three court appearances. These prior convictions included convictions for intentionally or recklessly causing injury, indecent assault, assault with a weapon, and abusing and tormenting an animal. They were recorded between June 1993 and March 1996.
The applicant stood for sentence at the same time as one Stan Salek, who was a co-offender in the commission of the crimes for which the applicant had stood for sentence. Salek had made an early plea of guilty at the committal proceeding and had given evidence against the applicant upon the latter's trial. Salek had admitted seven previous convictions from two court appearances in 1984 and 1995. The trial judge had sentenced him on eight offences to a total effective sentence of three years, which the trial judge totally suspended.
The applicant initially applied for leave to appeal against both his conviction and his sentence. He has abandoned his appeal against conviction and applies only for leave to appeal against his sentence on grounds, first, of manifest disparity between the sentences imposed upon him and those imposed upon the co-accused; secondly, that the sentences imposed upon him are manifestly excessive; and, thirdly, what is claimed to be an error by the trial judge in finding that the applicant had not "achieved stability for his various families".
The relevant facts which governed sentence are fully revealed in the judge's sentencing remarks. There is little point in repeating them verbatim. In substance, they reveal what seems to me to be a despicable course of conduct on the part of both co-accused in stealing and dishonest handling of motor cars. Indeed, it would seem to me that the sentences imposed on each accused could scarcely be regarded as ungenerous.
In 1996, Salek had stolen a motor car from a workmate in Dandenong. The applicant assisted Salek in procuring the false registration of this motor vehicle in the name of his former wife, and in 1997 engineered a bogus theft of the motor car. For the purposes, the applicant had procured, by falsifying documents, a false driver's licence. These activities were the subject of count 3 on the presentment.
By use of the false document the applicant registered the motor car in his name and thereafter sold it to an unsuspecting purchaser for $15,500. These activities were the subject of offences alleged in counts 4 and 5.
On a different occasion, the applicant had hired another motor vehicle from Wilson Investments Pty Ltd and had taken it to Mt Buffalo, whence its removal was engineered from The Chalet car park. It was driven to Melbourne and reported as stolen. It appears that the applicant and Salek altered its identity and procured its re-registration in the name of Salek. These were the activities constituting the offences which were alleged in counts 6 and 7 of the presentment.
Later in 1997, the applicant entered into arrangements with Salek to purchase the vehicle and thereafter procure with false documents its re-registration in his name and later still into the name of Salek's wife. These activities were the subjects of counts 8 and 9 on the presentment.
Various innocent people suffered loss as a consequence of these crimes, the proceeds of which were shared between the two co-accused. His Honour described the crimes, correctly in my view, as deliberate and cunning frauds, carried out for the purposes of greed, and totally without thought for their victims. They were in fact cunningly conceived and they revealed a high sense of dishonesty. His Honour took the view, however, that there were factors which should lead to different penalties being imposed on the two co-accused. Although he regarded the crimes - and the criminality involved in them - as being of the same order, the fact that Salek had pleaded guilty at an early stage, had co-operated with the authorities and had given evidence against the applicant called for greater leniency in his case than was called for in the case of the applicant whose personal circumstances did not generate, in his Honour's view, the same confidence that he would respond to a non-custodial order as his Honour concluded that Salek would.
It is submitted by Mr McKenzie on behalf of the applicant in this Court that the judge erred by violating what he called "the principles of parity". Indeed, Mr McKenzie submitted that, if anything, those principles should have led his Honour to the view that a more severe penalty should have been imposed upon Salek than upon the applicant because, although his Honour had found that the applicant was a willing accomplice in the crimes, he was also of the view that Salek was the "instigator" of them. For my own part, I am quite unable to accept this submission. In my view, the factors which the judge identified entitled him, for the purpose of punishment, to treat Salek differently from the applicant, and were such that if known and understood by objective and informed bystanders, the disparity in sentencing would give rise, I think, to no justifiable sense of grievance. The judge was well alert to issues of parity, and I can detect no error in his approach to that issue. Counsel for the applicant has, if I might say so, with industry, striven to convince this Court of countervailing factors in favour of his client. I am afraid that, taken singly or collectively, they do not persuade me that his Honour has fallen into error in treating the two co-offenders in the disparate manner in which he did.
Counsel next submitted that the sentences which he imposed upon the applicant were manifestly excessive. In large part, this submission was founded upon his Honour's mis-statement of the maximum penalties prescribed, at the relevant time, for the offences of "making a false document" and "handling". His Honour had, in the course of his sentencing remarks, stated that the maximum penalty for the former offence was 10 years (when it was 7½ years) and, in respect of the latter, was 15 years (when in fact it was 10 years). Those differences were pointed out to his Honour at the conclusion of his sentencing remarks, and his Honour responded by commenting that he would amend the transcript accordingly, but that the difference in maxima would lead to no change in the sentences imposed. It is apparent that the statements of his Honour as to maxima were not material errors, not only because the sentences imposed for the relevant offences were well "within range" but also because the ultimate disposition was "governed" by the sentence for obtaining property by deception, which carried a 10-year maximum - a maximum which his Honour did not mis-state. The penalties which his Honour imposed for the handling offences were one year's imprisonment in respect of each, and, in respect of the count alleging the making of a false document, two years' imprisonment. It is thus apparent from the sentencing process that in imposing these sentences his Honour was not "steering by the maximum" and that his slip in recording the maxima was, as he indicated to the prosecutor, immaterial to that process.
There is nothing else about these penalties which his Honour imposed, or about the total effective sentence, which in my view suggests that they are manifestly excessive. The conduct was, as his Honour correctly said, cunning and sustained, well planned and engaged in for reasons of greed. For an appellate court to set aside sentences on the grounds of manifest excess, it would have to be seen that they were so severe as to give, without more, the impression of error. I have no such impression in respect of the sentences imposed on the applicant. Indeed, as I have said, it seems to me that the sentences imposed were generous. That in my view remains so notwithstanding the various factors personal to the applicant which were raised before the judge and which have also been raised by Mr McKenzie before this Court.
It is finally contended by counsel for the applicant that the judge was in error in finding that the applicant "had not achieved stability for his families". His Honour used this term when he was drawing a distinction between the positions, at least for the purposes of sentencing, of the applicant on the one hand and Salek on the other. It is not entirely clear to me what his Honour had in mind, but it may simply have been an allusion to the comparison which existed on the material before him between the two co-accused, it being very clear that Salek was indeed in a stable relationship, while the applicant, although living with a partner in apparently harmonious circumstances, was not married and appeared not to have resolved final reconciliation in the position with his former wife and children. But whatever his Honour meant, it seems to me to have been a matter of minor significance in the sentencing process, particularly when regard is had to the context in which the comment was made. The substantial difference between the applicant and Salek was the obvious one: the early plea of guilty and the full cooperation leading to Salek giving evidence at the trial of the applicant. As I have already said, it was these factors which justified the difference in ultimate disposition. Beside them, the suggestion of competing stabilities in family life was in my view of small moment.
I would, for the reasons stated, reject the grounds upon which the applicant has relied. The application for leave to appeal against sentence should be dismissed.
BROOKING, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against sentence is dismissed.
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