R v TDJ
[2003] VSCA 151
•11 September 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 309 of 2002
| THE QUEEN |
| v. |
| TDJ |
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JUDGES: | WINNEKE, P., VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 September 2003 | |
DATE OF JUDGMENT: | 11 September 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 151 | |
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Criminal law – Sentence – Burglary and theft – Manifest excess – Sentence imposed failing to reflect the valuable assistance given by appellant to authorities – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Slades & Parsons |
WINNEKE, P.:
I will invite Vincent, J.A. to give the first judgment in this appeal.
VINCENT, J.A.:
The appellant pleaded guilty in the County Court sitting at Melbourne on 26 November 2002 to one count of burglary (count 1) and one count of theft (count 2). Each of these offences is punishable by the imposition of a maximum term of imprisonment for ten years.
After hearing a plea in mitigation of penalty, the learned sentencing judge on the same day imposed sentences of three years' imprisonment on each count which he directed were to be served concurrently. He ordered that the service of the whole of the total effective sentence thus created was to be suspended for a period of three years. He directed that it be noted on the court record that a less severe sentence than would otherwise have been imposed had been handed down as a consequence of an undertaking having been given by the appellant to assist, after sentence, law enforcement authorities in the investigation or prosecution of an offence.
Having been granted leave to do so, the appellant seeks to overturn those sentences on the grounds that:
“1.The learned sentencing judge erred in failing to give sufficient weight to the appellant’s plea of guilty, his remorse, his lack of prior convictions and other matters personal to the appellant.
2.The learned sentencing judge erred in failing to give sufficient weight to the appellant’s co-operation, past, present and future.
3.The discounts factored into the sentence failed to sufficiently reflect matters of public policy relating to the sentencing of high-level police informers.
4. The sentence was manifestly excessive in all the circumstances.
5.The sentences on counts 1 and/or 2 are in error in that they include a component of double punishment by reason of the common element of an intention to steal.”
The Background
The appellant was at the time of the commission of the offences aged 38 years and with no prior convictions. He was employed as a security officer by a company named Sigiad Security Services Pty Ltd. He had been working for that company on a full-time basis for about three months. His duties included the provision of security services to a large number of businesses in the western suburbs. The appellant’s tasks involved the checking of doors and gates, securing premises, and responding to alarms as required. He worked alone, used a marked security vehicle and wore an official company uniform. Generally he would check each of the many premises to which he had access keys two or three times per night.
Among the buildings to which he had access was a warehouse occupied by a company known as Hoffmans Transport at Newport. He became aware that cartons of television receivers were stored in the warehouse and, on an enquiry being made by an acquaintance named Russell Bassett, informed him of their presence. He entered into an arrangement with Bassett to leave the gates of the premises unlocked after one of his routine inspections, so that individuals, with whom Bassett was associated but were not known to him, could enter and steal a large number of the television receivers. Under the arrangement, Bassett and the appellant were to share 50% of the proceeds whilst the other persons would split the remaining 50% between them.
At about 12.30 a.m. on 16 April 2002 the appellant checked the premises of Hoffmans Transport in the normal course of his duties. As he was so doing, he was approached by one of the other participants who was parked nearby in a four-wheel drive vehicle. The appellant informed this individual that he would patrol the premises after which he would leave the gates unlocked as arranged. He then proceeded as agreed. However, before he left the vicinity, the appellant, using a piece of wire, linked the gate and padlock to create the impression that the premises were still secured. Forty-five minutes later other co-offenders arrived with a truck and entered the warehouse. Employing a forklift in the building, they commenced to remove television receivers. An alarm had been triggered however and two of them were arrested not long afterwards as they attempted to make their escape from the area. Fifteen cardboard boxes, each containing a television receiver, had been loaded onto the tray of the truck and a further eight were found on a forklift a few metres inside the warehouse doors. Depending on the method of valuation used, 24 receivers of the kind involved were worth between $33,000 and $65,000.
Not surprisingly, investigating police members suspected that the appellant was involved in this matter, but initially he denied that this was the case. As the sentencing judge remarked, “That may well have been the end of the matter”[1] as far as he was concerned. However, his Honour went on to say:
“because I accept your remorse and desire to right the wrong that you had committed, you voluntarily gave yourself up to the police and made full admissions.”[2]
[1]T.24
[2]T.26-27.
In support of the appellant’s contention that the sentence of three years' imprisonment whether suspended or otherwise must be perceived as manifestly excessive in all the circumstances, which I should add has been conceded by the Crown, his counsel Mr Croucher placed reliance upon a number of considerations. Each of them, he has argued, militated powerfully in mitigation of penalty and in combination, possess such force that the commission of sentencing error can be inferred. They include:
“(a)the appellant’s decision to come forward, implicate himself and assist in the prosecution of others;
(b)his exceptional level of assistance to the authorities thereafter, including his numerous statements and his undertaking to give evidence against others in this and other matters;
(c)his motive in coming forward to assist the authorities;
(d)the effect of his assistance on his personal circumstances – e.g., curtailment of freedom, loss of employment and impact upon his relationship with his family and friends;
(e)the personal risk involved in assisting the authorities in the manner that he had done and would continue to do;
(f)the fact that he will almost certainly be required to relocate and change his identity;
(g)the prosecutor’s concession that the appellant is in the category of informers described by Wells J in R. v. Golding & Golding[3] as ‘those who, in effect, act as additions to the police force, who go undercover, who live in danger of life and limb, and who, for little or no reward, remit a flow of useful information to the authorities’;
[3](1980) 24 SASR 161.
(h)his plea of guilty at the earliest possible stage;
(i)his remorse;
(j)his lack of prior convictions;
(k)his employment history;
(l)his personal circumstances;
(m)his prospects of rehabilitation;
(n)the prosecutor’s submission that the appellant was ‘not likely to re-offend’, and the judge’s findings that the offence was an ‘aberration’ and that he was ‘confident that [he] will not re-offend’;
(o)the fact that all property was recovered.”
It is apparent that his Honour was mindful of the presence of each of these features as the following passage demonstrates:
“You have given very valuable assistance in respect of these, and other matters, and I accept that you have done so for no gain to yourself, and indeed at great risk to yourself. Your information and assistance has caused you much hardship in relation to your family, your friends, your employment and so on. You will continue to provide assistance, and will give evidence against others. That short litany hardly does justice to the material that is before me. It is such that in the circumstances you are entitled to an informer’s discount as it is called of a high order.
You pleaded guilty at the earliest opportunity. You have no prior convictions, and have not been in any trouble since. I accept that you have demonstrated considerable remorse and have demonstrated that you have in effect rehabilitated yourself. It is proper, I think, to consider the offending an aberration, which occurred because you were in a vulnerable state at the time the temptation was offered to you. I am confident that you will not re-offend.”[4]
[4]T.27.
To be set against those considerations was his Honour’s assessment of the offending as serious. He pointed out that the offences were planned and professionally executed and, as far as the appellant was concerned, involved a serious breach of the trust reposed in him.
Setting to one side the issue raised by ground 5, there is nothing in the sentencing remarks of his Honour which demonstrates or might even be perceived as suggesting that he was not mindful of all of the relevant sentencing principles and considerations relevant to the determination of appropriate sentences in this case. Importantly, he acknowledged that a discount of what he described as a high order had to be given to the appellant for the extremely valuable assistance that he had undertaken to give to authorities, assistance which, I should add, the learned sentencing judge accepted has exposed the appellant to physical risk and has seriously disrupted his life, creating hardship for himself and his family.
Nevertheless, as Mr Hillman, who appeared for the Crown, has frankly accepted, it is apparent that the learned sentencing judge fell into error in imposing sentences of three years' imprisonment in this case, albeit immediate incarceration was not ordered. Absent all of the mitigating considerations to which his Honour adverted, sentences of that order could not be regarded as particularly lenient for the conduct in which the appellant engaged. When regard is had, however, to those mitigating factors, including the necessity to allow for a substantial reduction in the sentences imposed in recognition of the valuable assistance given and undertaken to be given to the authorities, the sentences are, in my view, manifestly excessive.
The Court having indicated its acceptance of this position in the course of discussion, Mr Croucher has not presented argument in respect of ground 5, which accordingly need not be addressed.
I would allow this appeal, set aside the sentences imposed in the court below and substitute in lieu thereof sentences of imprisonment for nine months on each count to commence from 26 November 2002. I would propose that the service of those sentences be wholly suspended for a period of nine months from that date. In other words, the operative period of suspension would now have expired.
WINNEKE, P.:
I agree that the appeal should be allowed and, for the reasons given by Vincent, J.A., that the orders proposed by him should be made by this Court.
EAMES, J.A.:
I agree with the orders proposed by Vincent, J.A. and with his reasons.
WINNEKE, P.:
The formal order of the Court will be that the appeal is allowed. The sentences imposed in the County Court on 26 November 2002 upon the appellant are set aside and in lieu thereof this Court substitutes the following sentences:
on count 1 (burglary) - a term of nine months' imprisonment.
on count 2 (theft) - a period of nine months' imprisonment.
We direct that the sentences be served concurrently and we further order, pursuant to s.27(1) of the Sentencing Act that the total effective sentence of nine months' imprisonment be wholly suspended from the date of the imposition of sentence by the sentencing judge, namely 26 November 2002, for an operational period of nine months.
The sentence which this Court has imposed has been a less severe sentence than otherwise we would have imposed because of undertakings given by the appellant to assist, after sentencing, law enforcement authorities in the investigation and prosecution of offences and we cause that pronouncement to be noted in the records of Court; and that the fact that the undertaking was given and its details be entered in the records of the Court.
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