R v Stavreski

[2006] VSCA 157

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 372 of 2005

THE QUEEN

v.

ZORAN STAVRESKI

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JUDGES:	BUCHANAN, VINCENT and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 August 2006
DATE OF JUDGMENT:	1 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 157

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Criminal law – Sentencing – Theft, handling stolen property and obtaining property by deception – Total value of property $10,846 – Individual sentences of four years and six months and four years and total effective sentence of five years’ imprisonment with a minimum term of three years’ imprisonment manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Slades & Parsons

BUCHANAN, J.A.: 

1. The appellant was arraigned in the County Court and pleaded guilty to a presentment containing six counts of handling stolen goods, five counts of theft and six counts of obtaining property by deception.  After a plea the appellant was sentenced to a term of four years' imprisonment on each of the counts of theft and obtaining property by deception and to a term of four-and-a-half years' imprisonment on each of the counts of handling stolen goods.  The sentencing judge ordered that ten months of the sentence imposed in respect of count 5 and three months of the sentence imposed in respect of count 12 be served cumulatively upon each other and upon the sentence imposed in respect of count 1, producing a total effective sentence of five years' imprisonment.  A minimum term of three years was fixed before the appellant was to be eligible for parole.

1. The appellant was granted leave to appeal by a single judge of the Court.  The appeal is based on the following grounds:

"1.The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

2.The learned sentencing judge erred in his approach to the pleas of guilty and in particular he erred:

(a)in engaging in a 'two-tiered' process of reasoning, rather than the intuitive synthesis with respect to the discount for the pleas of guilty;

(b)in failing to give sufficient weight to the pleas of guilty.

3.The individual sentences, the total effective sentence and the non-parole period infringed parity when regard is had to the sentences imposed upon the co-offender Elvis Mladenov."

1. The circumstances of the offences were as follows.  The appellant and a co-offender were apprehended by police in the multi-deck car park at Crown Casino.  The police conducted searches at the residences of the appellant and his co-offender and recovered a large quantity of property which was stolen from motor vehicles parked in the Crown Casino car park between 10 January 2002 and July 2002.  The offences of obtaining property by deception were committed by the appellant's use of a credit card stolen from one of the motor cars to purchase a number of items.  The approximate value of the property involved in all of the offences was $10,846.  Individual counts involved property valued in terms only of hundreds of dollars.  For example, count 17 involved a mobile telephone worth $300, count 16 involved an amplifier worth $500 and count 18 concerned a laptop computer and several items worth $750.

1. Apart from convictions for driving offences, the appellant had received a community-based order when he was convicted in 2001 on a number of charges, including theft.  He is now 28 years old.  He grew up in a conventional family, cared for by his parents with two older sisters.  When he left school the appellant commenced an apprenticeship in motor mechanics.  He completed three-and-a-half years of the apprenticeship when he was involved in a motor cycle accident in which he sustained multiple injuries.  Two or three years later he was involved in a motor car accident and sustained further injuries.  As a result of the injuries which he sustained in the accidents, he did not continue his apprenticeship and was not successful in obtaining other employment.  The appellant subsisted on unemployment benefits.  A psychiatrist, whose report was tendered in the course of the plea, stated his opinion that the roots of the appellant's offences lay in his personality and failure to appreciate basic moral values.  The psychiatrist thought that the appellant had "potential to change" that depended on his voluntary and genuine commitment to participate in such a change.  The appellant is married, and the sentencing judge observed that the marriage was a supportive relationship.

1. The respondent to the appeal conceded that the individual and total effective sentences and the non-parole period were manifestly excessive and that the sentencing judge erred in the way in which he dealt with the appellant's pleas of guilty, saying, as he did, "because of your pleas of guilty I have discounted the penalty in each count by six months".  The Court considered that the respondent's concession was well founded, and accordingly the appeal proceeded by way of a plea.

1. In re-sentencing the appellant I have had regard to his pleas of guilty, his relative youth and the fact that he has not previously been sentenced to a term of imprisonment.  As to the circumstances attending the commission of the offences, it is relevant to note that the value of the stolen property was relatively modest and the offences apparently did not involve significant planning or skill.  On the other hand, they persisted over a considerable period of time. 

1. I have also had regard to a report by a forensic psychologist, who has stated, amongst other things, that in his opinion the appellant does not present as a leader but in contrast presents as someone who is likely to be easily led and easily influenced.  In this context it is to be noted that the appellant's co-offender appears to have been the dominant character in the partnership.  The sentencing judge described the co-offender as "the leader of this little gang".  The psychologist also expressed the opinion that the appellant was suffering from "significant symptoms of anxiety and depression as part of an adjustment disorder with mixed disturbance of emotions and conduct" and said "I also formed the opinion that he was of relatively low intellectual ability and had very low self-esteem, and had difficulty understanding how his psychological state had been so adversely affected by a combination of factors, including his cessation of work, the motor cycle and motor car accidents, his offending behaviour and the sequelae of that offending behaviour.  I also formed the opinion he had a genuinely loving and caring relationship with his fiancée/wife, who frequently accompanied him to treatment consultations", and he said "his prospects for long-term rehabilitation in terms of the risk of him re-offending were very good".  In addition, I have read statements from the appellant's sister and his wife.  They hold the appellant in affection and esteem and have been significantly affected by his imprisonment. 

1. I would re-sentence the appellant to be imprisoned for a term of one year on each of counts 1, 11, 12, 15, 16 and 17, to a term of nine months on each of counts 2 to 10, 13 and 14.  I would cumulate four months of the sentence imposed in respect of count 2 and four months of the sentence imposed in respect of count 8 on each other and on the sentence imposed in respect of count 1, creating a total effective sentence of 20 months' imprisonment.  I would fix a period of 12 months before the appellant is to be eligible for parole.

VINCENT, J.A.: 

1. I agree.

NETTLE, J.A.:

1. I also agree.

BUCHANAN, J.A.:  The orders of the Court are:

The appeal is allowed. 

The sentences passed below are set aside and the appellant is re-sentenced to be imprisoned for a term of one year on each of counts 1, 11, 12, 15, 16 and 17;  to a term of nine months on each of counts 2 to 10, 13 and 14.  Four months of the sentence imposed in respect of count 2 and four months of the sentence imposed in respect of count 8 are to be cumulated upon each other and on the sentence imposed in respect of count 1.  The total effective sentence is one of 20 months' imprisonment. 

A period of 12 months is fixed before the appellant is to be eligible for parole.

It is declared that a period of 387 days of the sentence has already been served and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

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