R v Vincent; Director of Public Prosecutions v Vincent
[2009] VSCA 87
•12 May 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 907 of 2008 |
| v | |
| CHRISTOPHER SEAN VINCENT | |
| No 974 of 2008 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| CHRISTOPHER SEAN VINCENT |
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JUDGES: | REDLICH and KELLAM JJA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 March 2009 | |
DATE OF ORDER: | 10 March 2009 | |
DATE OF REASONS: | 12 May 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 87 | |
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CRIMINAL LAW – Appeal against conviction – Theft by police officer in course of duty – Whether sole offender or acting in concert with fellow officer – Direction as to concert not required.
SENTENCE – Director’s appeal – Failure to give adequate notice of ground of appeal – 12 months’ imprisonment with eight months suspended not manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for OPP |
| For the Applicant/ Respondent | Mr P F Tehan QC with Mr C B Boyce | Birch, Ross and Barlow Solicitors |
REDLICH JA
KELLAM JA
WILLIAMS AJA
The applicant seeks leave to appeal against his conviction on one count of theft committed in the course of his duties as a senior constable of police in the Victorian police force. He was sentenced to 12 months’ imprisonment of which eight months’ imprisonment was suspended for a period of three years. The Director of Public Prosecutions has appealed against that sentence on the ground that it is manifestly inadequate.
Immediately following the hearing of the appeal on the 10th March 2009, the Court announced its decision on both appeals. We refused the application for leave to appeal against conviction and dismissed the Director’s appeal against sentence. We said we would give our reasons at a later date. These are our reasons for making those orders.
The sole complaint made by the applicant concerning his conviction was that the trial judge failed to direct the jury on concert as a basis of accessorial liability. The applicant relied on a further consequential ground that the failure to direct as to concert meant that the verdict was unsafe and unsatisfactory in the sense contemplated by the High Court in Davies v The Queen.[1]
[1](1937) 57 CLR 170.
Although the jury trial occupied some 17 days the pertinent facts may be briefly summarised. In the early hours of the morning of 14 June 2005 the applicant was on divisional van duties with Senior Constable Antal, operating out of the Rosebud police station. They received a message via D24 to investigate a suspected loiterer at premises in Wood Street Flinders. The applicant then drove the divisional van to Wood Street where an abandoned car was observed on the side of the road. The vehicle had become bogged and had been left there by the owner who had walked to her home for assistance. The owner believed that she had left some $35,000 to $40,000 in cash in the rear of her vehicle, a Honda hatchback. The applicant got out of the divisional van whilst Senior Constable Antal remained in the divisional van obtaining details concerning the registration number of the abandoned vehicle. Whilst receiving those particulars he noticed the applicant go to the rear of the Honda hatchback and open the boot. He observed the applicant searching through the boot and from time to time looking back to him. The applicant appeared to be putting something down the front of his pants. The applicant then called Antal over to the vehicle. Antal then observed some money in the boot and the applicant said words to the effect ‘let’s take the money’. Antal stated that they should return the money to its owner. The applicant then proceeded to put $50 notes into some cotton bags which were in the rear of the Honda vehicle. The applicant handed Antal one of the bags and they then proceeded to place the cotton bags in the middle compartment of the police divisional van. Antal gave evidence that as they were driving away the applicant again said ‘let’s take the money’ and he eventually agreed that they should do so. They then drove to a dirt road where they stopped and counted the money, totalling approximately $10,000, which they divided between them placing their respective halves in separate cotton bags. They then drove to Antal’s premises where he left his half of the stolen property. They drove to the applicant’s home where the applicant left his share of the proceeds.
The applicant gave evidence that upon sighting the abandoned car in Wood Street he got out and looked inside the car with his torch. He denied that he shone his torch into the boot or rear part of the hatchback or opened the boot. The applicant thought it took him approximately five minutes to complete his check of the Honda. As he was returning to the divisional van he passed Antal who was walking toward the abandoned car. He testified that while Antal was at the Honda he needed to urinate. He found a private spot behind the divisional van where no-one could see what he was doing. During this time he was not able to observe Antal. He then returned to the divisional van. He did not see any money, nor did he have any discussion with Senior Constable Antal about any money. He denied that they then drove the divisional van to their homes.
Under cross-examination the applicant’s account that he did not look in the boot of the hatchback was challenged.
No complaint was made about the learned trial judge’s direction as to the elements of the crime of theft. After referring to the requirement that the Crown prove beyond reasonable doubt that the applicant ‘appropriated property that belonged to another person’ his Honour identified for the jury, as the central issue in the case, whether the Crown had proved beyond reasonable doubt that the applicant had taken the cash without the owner’s consent on the morning of 14 June 2005. He told the jury that it was for them to determine whether the applicant had taken the cash. His Honour repeated a number of times that the jury could not convict the applicant unless they were satisfied that he had ‘taken’ or ‘stolen’ the cash. His Honour then told the jury that he would summarise the evidence given by Antal ‘concerning the alleged taking of the cash by Mr Vincent’. Before doing so, he gave the jury a full accomplice warning concerning Antal as it was accepted that he was an accomplice who had participated in the theft of the money. After providing the jury with a detailed summary of Antal and the applicant’s evidence, about which no complaint is or could be made, his Honour also gave the jury an extensive Liberato direction. His Honour then said:
The rejection by you of the accused’s version of events cannot mean that necessarily Anthony Antal was telling the truth, or that the Crown has proven its case beyond reasonable doubt. In such circumstances where you have rejected the accused’s evidence, you still must ask yourself, has the Crown proved the accused’s guilt beyond reasonable doubt, and in the circumstances of this case, am I satisfied beyond reasonable doubt of the truth and accuracy of Mr Antal’s evidence.
In this case I direct you, you could not find the accused guilty of theft unless first you have obeyed and applied all the directions in law that I have given you about assessing Mr Antal’s evidence and Mr Vincent’s evidence, and further you have scrutinised the evidence of Mr Antal most carefully, and having done so, are first satisfied beyond reasonable doubt of its truth and accuracy and secondly, that the Crown has established beyond reasonable doubt each and every element of the offence.
His Honour also gave the jury a warning that even if they rejected the defence argument as to Antal’s motive for giving false evidence, it remained for the prosecution to prove beyond reasonable doubt that Antal was telling the truth. The trial judge gave the jury detailed and fair instructions which were designed to ensure that jury would only return a verdict of guilty if they were satisfied that Antal was both an honest and reliable witness.
Later, in summarising the Crown argument the trial judge said of Antal’s evidence:
It is the position of the Crown however that you can rely on his evidence in relation to the key issue in this trial, that is, that Mr Antal saw the accused man, Mr Vincent, take the cash. That he clearly saw Mr Vincent took cash and that he split up the cash and is highly unlikely to forget those facts.
The applicant did not dispute on the appeal that it was Antal’s evidence and the Crown case, that the applicant had initially appropriated the money. That said, the applicant contended that it was the prosecution case that he and Antal had acted ‘together’ in stealing the money from the unattended Honda. Reliance was placed upon submissions made in the prosecutor’s closing address that the applicant and Antal had acted together ‘as a team’ and that it did not matter who was the primary offender as the law said that they were equally guilty irrespective of the role which each played. The applicant submitted that the prosecutor’s closing remarks that the Crown need not prove who was the ‘dominant partner’, coupled with the prosecutor’s suggestion that the evidence showed that the applicant ‘was in this theft up to his neck’ showed that the prosecution was relying upon the doctrine of concert to establish the applicant’s guilt.
The applicant also relied upon the prosecutor’s cross-examination of him and the prosecutor’s closing remarks in which much was made of the applicant’s inability to account for or describe Antal’s actions at the Honda after the applicant had completed his search of that vehicle. The applicant acknowledged that the prosecutor’s argument focused upon the weakest aspect of his account, namely that he had not seen Antal take the money, that Antal did not tell him what he had done with the money and that he had no knowledge of Antal’s crime. In our view, this prosecution argument was not advanced to support a finding that the applicant acted in concert with Antal, but was intended to demonstrate that the applicant’s account that it was Antal and not he that had taken the money from the boot was unbelievable.
The trial judge gave the jury the usual direction that it was open to the jury to accept parts of a witnesses evidence and to reject other parts of that evidence. Thus it was said that the jury may have rejected much of Antal’s evidence but accepted some small part of his evidence as to what occurred after the divisional van was driven from the scene and rejected the applicant’s evidence that he did not know anything about the money. But the trial judge’s instruction as to acceptance of parts and rejection of other parts of a witness’s evidence was given in the context of a general instruction as to how the jury could approach the evidence of a witness. It could not have been understood as a qualification to the direction that the guilt of the applicant depended upon acceptance of Antal’s evidence that the applicant took the money from the boot.
The applicant’s contention that the prosecution was relying upon the doctrine of concert cannot be sustained. In both the written and oral submissions, the applicant accepted that the jury was directed on the basis that it was the Crown case that it was the applicant that was the principal offender. The judge directed the jury that the Crown case depended upon the acceptance of the evidence- that of Antal- that it was the applicant who had taken the money. That is to say the jury were directed that it was the Crown case that the applicant performed the actus reus of the crime of theft with the necessary intent. As the trial judge repeatedly directed the jury, proof of those facts rested upon acceptance beyond reasonable doubt of the truth and accuracy of Antal’s testimony that the applicant took the cash from the boot.
Counsel for the applicant maintained that the trial judge ought to have directed the jury as to the doctrine of concert as the jury may have accepted the bulk of the applicant’s account but found that he lied when he said he did not know that Antal had taken the money from the Honda when they travelled away from the scene of the crime. Thus it was said that if the jury were satisfied that Antal was the principal offender, they received no instruction as to how the applicant might then be found guilty. It was submitted that in the absence of an instruction that mere presence and knowledge of commission of the crime was insufficient to establish guilt, the jury may have thought that knowledge by the applicant that Antal had taken the money would be enough to support a finding of guilt. It was submitted that the jury may have impermissibly taken into account some knowledge or conduct of the applicant after the money was placed in the divisional van
This submission must be rejected. First, the hypothesis upon which it rested required the assumption that the jury would have ignored the repeated instructions of the trial judge that they could not convict the applicant unless they accepted Antal’s account as truthful and accurate. Those instructions emphasised the sole way in which the jury were told they could find the applicant guilty. It was to the applicant’s considerable advantage that the case was presented to the jury on the basis that they could not convict unless they found Antal’s account truthful and accurate.
Second, the applicant’s submission wrongly assumes that there was a view of the evidence which would have permitted a finding that had Antal committed the offence, the applicant was acting in concert with him. If the jury had been satisfied beyond reasonable doubt by the applicant’s evidence, and thus inferred that it was Antal who appropriated the cash from the boot, there was no evidence that could support the conclusion that he did so pursuant to an agreement or understanding with the applicant that he should commit that offence. Senior counsel for the applicant appeared to concede as much. Consequently it would have constituted error to have instructed the jury that it could convict the applicant on such a basis as there was no evidence from either of the primary witnesses which would have permitted such accessorial liability to be inferred.
We should also note that counsel for the applicant eschewed any submission that the correct course would have been for the trial judge to have directed the jury to disregard the prosecutor’s comments to which we have referred. No objection was taken to them. Evidently neither the defence, nor the very experienced trial judge perceived any risk that the jury would disregard the clear instructions the jury were given, as to the basis upon which it was open to them to convict the applicant.
We now turn to the Director’s appeal against the applicant’s sentence on the sole ground that it was manifestly inadequate.
The Director submitted that the judge gave insufficient weight to the sentencing objectives of punishment, general and specific deterrence, denunciation and community protection and that he had insufficient regard to the maximum penalty, the nature and gravity of the offence, the applicant’s culpability, his responsibility for the offence and its impact on the victim. The Director also contended that the judge failed to have sufficient regard to the aggravating features of the offence and, in particular, to the applicant’s position as a police officer and the serious breach of trust involved in the commission of the offence.
We are satisfied that the learned judge’s comprehensive reasons for sentence made it clear that his Honour did give sufficient weight to the sentencing objectives mentioned and that he recognised the gravity of the offence committed in the course of police duties. Indeed, his Honour described the crime as a serious breach of the applicant’s duty as a police officer. He referred to relevant authority[2] and noted the particular importance of general deterrence and denunciation in such cases.
[2]Citing R v Cox [2006] VSC 443; R v Ferguson [2006] VSC 163; R v Strawhorn (2008) 19 VR 101 and DPP v Armstrong [2007] VSCA 34.
We also reject the argument that the judge’s characterisation of the theft as ‘opportunistic’ demonstrated error. No doubt, as the Director submitted, police carrying out their duties are more likely than most to be presented with opportunities to steal. His Honour was not, in our view, equating, for the purposes of culpability, a theft by a police officer coming across property in such circumstances with one committed by an ordinary citizen presented with an unexpected opportunity to steal. Rather, he was appropriately differentiating the applicant’s crime from one which was premeditated or committed in a context of systematic police corruption.
The Director also complained that the judge had placed too much emphasis on the principle of parity in relation to Antal’s previously imposed sentence of six months’ imprisonment fully suspended for two years. He submitted that Antal’s guilty plea, his admissions only days after the offence, his agreement to testify against the applicant, his status as a police officer and his relevant mental illness all justified his fully suspended sentence. The Director contrasted the applicant’s ‘no comment’ record of interview, his not guilty plea and four week trial and submitted as he had done on the plea, that a sentence of imprisonment of three to four years, with a non-parole period of eighteen months to two years was an appropriate sentence. We do not consider that the sentencing judge was bound to impose a sentence within that range.
The applicant’s sentence involved a term of imprisonment double that imposed on Antal. Further, he was required to serve an immediate period of four months incarceration in the difficult and limiting conditions of the protective custody he required as a police officer. The suspension period for the balance of his sentence was also a year longer than that in Antal’s case. We are not persuaded that the judge gave undue weight to the principles of parity.
The Director further contended, more generally, that too much weight was accorded to the applicant’s mental impairment. It was in that context that he sought to argue that the judge had erred in concluding that the applicant’s depressive illness was linked to his offending, absent evidence justifying that finding.
As no such challenge had been articulated in the grounds of appeal, senior counsel for the applicant objected to the argument being raised without notice and pointed out that the judge had been deprived of the opportunity of responding to it in a judge’s report. The Director submitted that notice had been given and pointed to the a somewhat ambiguous part of his written outline of submission on sentence.[3] The Court reserved its decision in relation to the objection and heard submissions on the question.
[3]Referring to paragraph 12(a).
Crown appeals represent a departure from the common law principle against double jeopardy hence the approach that they should only be brought in special circumstances.[4] In Malvaso v R[5] Mason CJ, Brennan and Gaudron JJ stated that ‘[s]trict compliance with procedures which authorize an increase in sentence by an appellate court should be insisted upon’.[6] In DPP v Arvanitidis[7] this court distinguished the particulars filed by the Director in support of a ground of manifest inadequacy from ‘specific errors of fact or law made by the sentencing judge which should be the subject of separate grounds’.[8] Accordingly, where the Director seeks to demonstrate a specific error, the respondent should be provided with grounds which clearly identify that error. The sentencing judge should also be afforded a proper opportunity to respond to the issues to be raised in the appeal.
[4]See R v Clarke [1996] 2 VR 520, 522 (Charles JA) (Winneke P and Hayne JA agreeing).
[5](1989) 168 CLR 227.
[6]Ibid 233.
[7][2008] VSCA 189.
[8]Ibid [18].
No ground was filed or sufficient notice given of an intention to challenge the sentencing judge’s findings of fact as to the connection between the applicant’s mental impairment and his offending. We would not ordinarily have been disposed to permit the Director to rely upon this additional argument but the respondent did not seek time to prepare a response and did not submit that he was prejudiced.[9] Having regard to the narrow compass of the argument and the way in which it can resolved we are prepared to address the substance of this additional submission.
[9]Save for the possible benefit of a judge’s report on the issue.
The trial judge relied upon unchallenged evidence as to the respondent’s mental illness by way of reports from his treating general practitioner, Dr Andrew Smith, and the consulting psychologist, Ms Louise Samways. We considered that it was clearly open to him to have reached the conclusions he did on that material and that his findings disclosed no sentencing error. In accordance with authority, His Honour properly took into account the significance of the respondent’s mental health.[10] He also gave due weight to the effects upon him of the lengthy delay between charge and sentence.
[10]R v Verdins (2007) 16 VR 269.
The Director has failed to demonstrate that this sentence was a manifestly inadequate disposition warranting the intervention of this court. In accordance with well established principles we do not consider that the sentence imposed was one with which we should interfere, it being one that was open to the trial judge within a sound exercise of the sentencing discretion.[11]
[11]See R v Clarke [1996] 2 VR 520, 522-3 (Charles JA) (Winneke P and Hayne JA agreeing); DPP v Josefski (2005) 13 VR 85, [63]-[65] (Chernov JA) (Callaway JA agreeing).
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