Repac v The King

[2023] VSCA 313

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0065

ALEX REPAC	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023
DATE OF JUDGMENT:	11 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 313
JUDGMENT APPEALED FROM:	[2023] VCC 390 (Judge Maidment)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant guilty of multiple counts of burglary and theft – Total effective sentence of 5 years, non-parole period of 3 years 4 months – Judge erred in taking account of property damage as aggravating feature of burglary – Despite error no reasonable prospect Court would reduce total effective sentence – Sentences not manifestly excessive – Leave to appeal sentence refused.

Criminal Procedure Act 2009, s 280(1)(b).

R v Newman [1997] 1 VR 146; Salapura v The Queen [2018] VSCA 255; Bava v The Queen [2021] VSCA 34, considered.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Ms MA Mahady
Solicitors
Applicant:	Chester Metcalfe & Co.
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
WHELAN JA:

1. After pleading guilty to two counts of burglary,[1] two counts of theft,[2] and one count of negligently dealing with the proceeds of crime,[3] the applicant’s plea in mitigation was heard in the County Court over two days (11 November 2022 and 28 February 2023). Judge Maidment sentenced the applicant on 8 March 2023 to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 4 months, as follows:

   [1]Contrary to s 76 of the Crimes Act 1958.

   [2]Contrary to s 74 of the Crimes Act 1958.

   [3]Contrary to s 194(4) of the Crimes Act 1958.

Charge	Offence	Maximum	Sentence	Cumulation
1	Burglary	10 years	10 months	3 months
2	Burglary	10 years	4 years	Base
3	Theft	10 years	4 years	8 months
4	Theft	10 years	4 months	1 month
5	Negligently deal with proceeds of crime	5 years	2 months	-
Total Effective Sentence:		5 years’ imprisonment
Non-Parole Period:		3 years and 4 months
Pre-sentence detention declared:		310 days
Section 6AAA Statement:		7 years and 6 months’ imprisonment with a non-parole period of 5 years and 2 months.
Other relevant orders:		Forfeiture order

1. The applicant seeks leave to appeal against his sentence on two proposed grounds:

   (a)The learned sentencing judge erred in taking into account as an aggravating feature of the burglary the subject of charge 2 the damage caused to the premises.

   (b)The sentences imposed on each of charges 1–4, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive.

2. The respondent conceded that criminal damage caused during the burglary the subject of charge 2 constituted separate and serious criminality for which the applicant had not been charged. Applying the principle stated in Bava v The Queen (‘Bava’),[4] the respondent conceded that the sentencing judge had erred by finding that the damage aggravated the relevant burglary charge. As explained below, however, the respondent submitted that there was no error in the sentence imposed by the judge, and that this Court should not grant leave to appeal on the first proposed ground. The respondent also argued that the applicant’s second proposed ground had no reasonable prospects of success and that leave should also be refused in relation to it.

   [4][2021] VSCA 34, [61] (Priest and Kyrou JJA) (‘Bava’).

3. As we will now explain, our view is that leave to appeal against sentence should be refused.

Background facts

1. On 6 September 2021, CCTV footage captured the applicant entering a secure car park at premises at 38 Camberwell Road, Hawthorn East. On that occasion, the applicant entered the premises as a trespasser, used a toilet and noticed a mountain bike in storage. Sometime later — on 31 October 2021 — the applicant returned to the premises and stole the mountain bike. It was valued at $3,000. The unlawful entry to the premises on 6 September 2021 and theft of the bicycle on 31 October 2021 formed the basis of charges 1 and 4 respectively.

2. Also on 31 October 2021, the applicant and a co-offender entered a dwelling house in Beach Street, Port Melbourne. The house had been vacated because of repair works which were being carried out by an insurance company. The owners had relocated to another property while the work was being performed.

3. The house was part of a four-level apartment complex. The applicant and the co-offender gained entry to the house via a door that had been left ajar. Once inside, the applicant and the co-offender ransacked the house. The applicant opened doors and cupboards and took cupboards off walls. As the judge noted, the applicant ‘caused damage estimated at about $98,000 during the course of [his] destructive conduct within the property’.[5]

   [5]DPP v Repac [2023] VCC 390, [5] (‘Reasons’).

4. The applicant stole a large number of items from the premises, including a safe which contained jewellery and personal documents. Apart from the safe, the applicant stole expensive boutique clothing, expensive handbags, wines and an Order of Australia medal and certificate belonging to one of the owners of the premises. He and his co-offender also removed the CCTV hard drive from the premises to evade detection.

5. Whilst at the entry gate of the premises, the applicant and his co-offender were interrupted by a man who was associated with the complex. The man asked the applicant what he was doing. The applicant claimed that he and his co-offender were there to pick up a skip and fix the gate. Both wearing hi-vis clothing, they said they were ‘from Bunnings’. The man saw that the applicant had a blue Holden Commodore and took a photograph of it. The man left for a short period and then returned, by which time the applicant and his co-offender had left. CCTV footage obtained from another property showed that the applicant had towed away a skip with the blue Commodore. The skip had been left in the garage of the premises, full of building rubble. The applicant had removed the rubble in order to carry away the stolen items.

6. Upon his return to the premises, the man who had spoken to the applicant contacted one of the owners of the premises to notify him of the intrusion. Police were then called and attended the scene.

7. The next day, the applicant was arrested in Kew. He was in possession of a small amount of the jewellery, and a document, which had come from the premises in Port Melbourne. The vast bulk of the stolen property was not recovered. The total value of the contents of the safe was put at in excess of $300,000, and the total value of the property stolen from the premises was estimated to be $724,136.

8. After the applicant’s arrest, police located images on a mobile phone found in his possession. Those images depicted a New South Wales driver’s licence and a Medicare card, which had been amongst property stolen from a burglary that took place at an address in Tullamarine in May 2021.

9. The entry into the premises at Port Melbourne was the subject of charge 2 (burglary), and the theft of the approximately $724,000 worth of property from that house was the subject of charge 3 (theft). The evidence of the applicant’s possession of the driver’s licence and Medicare card stolen in May 2021 led to charge 5 (negligently dealing with proceeds of crime).

10. When interviewed by police, the applicant denied any wrongdoing in relation to the burglary in Port Melbourne. He claimed that he had gone there to collect a skip after accepting a job to do so through Airtasker (an online employment platform). He admitted stealing the mountain bike from the Hawthorn East property, saying that he had first noticed the bike whilst performing some labouring construction work nearby and went back to steal it later. He claimed that the bike had since been stolen from him.

11. After his arrest on 1 November 2021, the applicant was remanded in custody. At the second committal mention on 10 March 2022, the applicant agreed to plead guilty to the charges laid on the indictment. He was granted bail on 12 May 2022.

Sentencing reasons

1. The judge rehearsed the circumstances of the offending. In the course of doing so, the judge took note that the burglary and theft had a significant effect on the owners of the premises at Port Melbourne. Referring to a victim impact statement made by the male owner, he noted that both of the owners were devastated by the damage that had been done to the premises, the intrusion upon their home and the theft and loss of many items of property that had sentimental as well as monetary value. The judge further observed:

   Burglaries of that kind of dwelling are calculated to cause that response from owners who are entitled to feel safe in their own homes, and entitled to feel that their property is safe in their own home when they are absent from it.[6]

   [6]Reasons, [20].

2. With reference to matters personal to the applicant, the judge referred to a forensic psychologist’s report prepared by Laura Fleming dated 6 February 2023. He noted Ms Fleming’s opinion that the applicant suffered from Post-Traumatic Stress Disorder, Stimulant Use Disorder and Sedative, Hypnotic or Anxiolytic Use Disorder. She further noted the applicant reported symptoms consistent with a diagnosis of Attention Deficit Hyperactivity Disorder, although she was unable to endorse that diagnosis.

3. The judge referred to the applicant’s family background. His parents had been in conflict with one another, and his father abused alcohol and was physically violent. The applicant’s grandfather had died suddenly as a result of an injury in the garden, which had a profound effect upon the applicant, leading to a diagnosis of a grief disorder. The applicant had moved out of home at the age of 18 because of his drug use at that time. He had completed Year 11 at school before commencing an apprenticeship. His history of substance abuse began at the age of 18. He had abused amphetamines, GHB, heroin and alcohol. Although he had married and had a child, his substance abuse led to estrangement from his family and termination of his employment.

4. The judge did not think this was a case where the principles in Bugmy v The Queen[7] applied ‘to any substantial extent’, but took into account in a general way the applicant’s background circumstances when sentencing him. The judge accepted that the fifth limb of R v Verdins (‘Verdins’)[8] applied, in that the applicant’s mental impairments would make time in custody more difficult for him to navigate. However, the judge rejected a submission that the second and sixth limbs of Verdins were applicable.

   [7](2013) 249 CLR 571; [2013] HCA 37.

   [8](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).

5. The judge accepted that there was significant utilitarian value in the applicant’s plea of guilty, that there should be a significant discount applied to the sentence because his plea occurred during the COVID-19 pandemic, and that the applicant’s continuing incarceration would also be subject to the restrictions imposed because of the pandemic. The applicant had serious prior convictions, culminating in a term of imprisonment having been imposed on 9 June 2020 for a number of offences involving dishonesty and other matters. The judge rejected the submission that the applicant’s rehabilitation prospects were good, putting them no higher than ‘guarded’. The judge also took into account the fact that, whilst in custody, the applicant was kept in protective custody because of his own perceived risk of violence from other prison inmates.

6. Pertinently, the judge made observations about the relevance of the damage caused during the course of the burglary, amongst other factors, to the assessment of the gravity of the offending:

   The prosecution also tendered and relied upon written submissions dated 11 November 2022. They support the submission that Charge 3 is a particularly serious example of theft and the damage caused during the course of the burglary is an aggravating feature of the burglary. The burglary is serious because it involves the unlawful entry into a dwelling house. Further, it is clear that there was a degree of planning, sophistication and daring involved in the way in which the burglary took place. Clearly there was an expectation that there would be a significant quantity of valuable material in the premises and a skip available to transport the stolen goods.

   It was brazen. You were not put off by the intervention of the gentleman who organised for photographs to be taken of you and your vehicle and you continued with the offending despite his intervention. And it is clear that your motivation was for substantial profit which you sought to obtain in the time following the burglary. Entry was gained to the safe, and your sustained conduct led to the contents of the safe being made available to you for the purposes of on-sale.[9]

Proposed ground 1: Did the judge err in treating the damage as an aggravating feature of the burglary?

[9]Reasons, [38]–[39] (emphasis added).

1. Burglary is complete when the offender enters the premises as a trespasser while having the requisite intention, whether that be to steal, assault or damage property.[10] In R v Newman (‘Newman’),[11] Winneke P (with whom Hayne JA and Crockett AJA agreed) said as follows:

   The common law principle that a person cannot be sentenced for an offence with which he has neither been charged nor convicted is a venerable one, but it is one which has created a tension with another equally venerable principle of sentencing; namely, that a sentencing judge is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged. The latter principle however must, in the appropriate circumstances, give way to the former because it could never be consistent with fairness and justice to sentence a person for an offence with which he has not been charged or convicted ….[12]

   [10]DPP v Barnes [2015] VSCA 293, [45] (Croucher AJA, Redlich JA agreeing at [1], Kyrou JA agreeing at [2]), adapted to the offence of burglary as opposed to aggravated burglary (‘Barnes’).

   [11][1997] 1 VR 146.

   [12]Ibid 150 (Hayne JA agreeing at 146, Crockett AJA agreeing at 153).

2. With reference to how the Court is to resolve the tension which Winneke P referred to in Newman, in Salapura v The Queen (‘Salapura’),[13] this Court said:

   However, this simply means that all the elements of the offence are satisfied for the purpose of proving the offence; it does not mean that everything that happens while the offender is in the building is irrelevant to the objective gravity of that offence. On the contrary, as an element of the offence is entering a building as a trespasser, that element continues for the entire time that the offender remains in the building as a trespasser. As this Court said in [DPP vBarnes (‘Barnes’)],[14] the offence of aggravated burglary ‘can be regarded as persisting while the offender is inside the premises’. Accordingly, what occurs after entry into the building forms part of the context in which the offending takes place and may provide evidence of the intent with which the entry was made. It may also inform the overall seriousness of the offence.[15]

   [13][2018] VSCA 255 (‘Salapura’).

   [14][2015] VSCA 293.

   [15]Salapura [2018] VSCA 255, [57] (Whelan and Kyrou JJA).

3. Drawing together the principles in Newman, Barnes and Salapura, this Court stated in Bava:

   Although the offence of aggravated burglary continues for the entire period in which an offender remains on the relevant premises as a trespasser, there are limits on the purposes for which events occurring after entry may be taken into account. Those events may provide context for the offending and may be used to draw relevant inferences, such as the purpose for which the offender entered the premises. However, insofar as the events constitute separate serious criminality for which the offender has not been charged, that criminality cannot be taken into account adversely to the offender for sentencing purposes. In particular, that criminality cannot be treated as an aggravating factor in assessing the gravity of the aggravated burglary offence. That is so in order to ensure that the offender is sentenced only for the offending for which he or she has been convicted.[16]

Submissions

[16][2021] VSCA 34, [61] (Priest and Kyrou JJA).

1. The applicant submitted that, having regard to the judge’s statement in the Reasons, the judge plainly took into account the damage carried out at the Port Melbourne premises during the course of the burglary as an aggravating feature of the burglary itself. Nevertheless, the applicant submitted, the conduct involved in causing the damage did not provide any relevant context to the commission of the burglary, given that the burglary was founded upon an intention to steal and not an intention to cause damage when inside the property. Thus, the conduct causing damage inside the property constituted ‘separate serious criminality for which the offender has not been charged’, adopting the language used in Bava.

2. The uncharged conduct was serious because it concerned a significant degree of damage, as reflected in the value of that damage being nearly $100,000. The applicant submitted that it was the seriousness of the uncharged act of causing damage, and the fact that the damage was not connected with the forced entry to the premises, which differentiated this case from others in which property damage caused in the context of charges of burglary had been relevant to the sentence.[17] As a matter of fairness, the seriousness of the criminal damage was such that it ought to have been the subject of a separate charge if it was to be taken into account as part of the circumstances surrounding the offence charged.

   [17]Referring, for example, to DPP v Bowd [2019] VSCA 246, [20], [27] (Maxwell P, T Forrest and Weinberg JJA).

3. According to the applicant, there was an error in the sentence imposed and this Court ought to impose a different and lesser sentence.

4. As already mentioned, the respondent conceded that the judge was in error in having regard to the criminal damage as an aggravating feature of the offence of burglary. Nevertheless, the respondent submitted that proposed ground 1 cannot be made out because the property damage was only one factor, and not a material one, that the judge considered in assessing the seriousness of the burglary. The sentencing judge also referred to the unlawful entry into a dwelling house, the degree of planning, sophistication and daring in the way the burglary took place, and the fact that it was ‘brazen’ and motivated by profit.

5. In those circumstances, submitted the respondent, it was ‘open’ for the sentencing judge to find that the burglary was a serious example of the offence and to have sentenced in the way that he did. For these reasons, the respondent submitted that leave to appeal on proposed ground 1 should be refused.

Consideration

1. Initially, we had some doubt as to whether the judge actually accepted that the damage caused to the Port Melbourne house aggravated the burglary (charge 2), or whether the judge was merely recording a submission made to that effect.

2. At the plea hearing, the prosecutor submitted that the damage was a relevant aggravating factor, the judge referred to it in such terms more than once, and defence counsel did not submit that the damage was not capable of being viewed in that way. In the Reasons, the judge specifically noted the devastating effect of the damage on the victims as outlined in the victim impact statement. That statement reveals that the owners regarded the damage to the property as being particularly distressing.

1. In those circumstances, we are satisfied that the judge’s reference to an ‘aggravating feature of the burglary’ in the emphasised portion of his Reasons extracted above (see [21]) reflects the fact that he assessed the gravity of the offending by having regard to the extent of the criminal damage.

2. We were also concerned to ensure that the concession made by the respondent in this case was properly made. In particular, it was necessary to consider the extent to which the damage caused to the property represented criminality that was sufficiently separate from the continuation of the trespass (that is, the burglary). That is, mindful of the ‘tension’ described by Winneke P in Newman, it is necessary to enquire whether the judge’s consideration of the damage strayed into punishing the applicant for an offence with which he has neither been charged nor convicted, rather than simply taking into account circumstances which were relevant to the commission of the burglary.

3. Again, taking note of the description of the damage set out in the victim impact statement (to which the judge had regard), we are persuaded that the nature of the damage was such as to represent quite distinct and separate criminality from the burglary. It is apparent that every room and every cupboard in the property was turned upside down, with locked doors broken and cupboards pulled off walls. Memorabilia — of little monetary value but high emotional significance — was removed or destroyed. The extent of the damage was such that the restoration of the property took an additional 4 months over and above the repair work which the insurance company was originally engaged to perform.

4. In those circumstances, it is sufficiently clear that the damage was not merely occasioned as part and parcel of the intrusion, or even of the search for property to steal, but, rather, entailed gratuitous and opportunistic wrecking. Hence, we are satisfied that it represented quite distinct and additional criminality from the burglary itself. Intentional damage to property without lawful excuse constitutes an offence punishable by a maximum of 10 years’ imprisonment.[18] The applicant was not charged with such an offence and he could not be sentenced by reference to it, even if only indirectly.

   [18]Crimes Act 1958, s 197.

5. In the result, we are persuaded that the judge was in error in aggravating the offending constituting the second burglary charge by reference to the damage inflicted by the applicant at the property.

6. Further, we disagree with the respondent’s submission that the error was not material. By this, we understand the submission to mean that it was not material to the outcome of the sentence. An error is material if, at the least, it had the capacity to influence the judge’s instinctive synthesis of all the circumstances in arriving at the sentence imposed.[19] The burden is on the respondent to demonstrate that it did not have such a capacity. In our view, the respondent is unable to discharge that burden.

   [19]See, by analogy, Callaway JA in R v Beary (2004) 11 VR 151, 159 [21]; [2004] VSCA 229 for the test applied in a different context.

7. There being an error in the sentence first imposed, the question arises — pursuant to s 280(1)(b) of the Criminal Procedure Act 2009 — whether there is any reasonable prospect that the Court of Appeal would reduce the total effective sentence despite that error. If not, leave to appeal must be refused.

8. In our opinion, there is no reasonable prospect that the Court would reduce the total effective sentence of 5 years’ imprisonment.

9. The judge was correct to regard the burglary and theft at Port Melbourne as brazen, and exhibiting a degree of planning, sophistication and daring. The amount of property stolen approached a value of three-quarters of a million dollars. Little of that property was recovered. The high value of the property stolen increases the culpability of the offender and places the offending in a serious category.[20] The impact on the victims of the loss of their treasures, both valuable and/or of sentimental value, was quite devastating.

   [20]DPP v Bowd [2019] VSCA 246, [27] (Maxwell P, T Forrest and Weinberg JJA).

10. In our opinion, looked at discretely, the individual sentence of 4 years for the theft the subject of charge 3 was appropriate, but the amount of cumulation of only 8 months did not adequately reflect the distinct additional criminality involved in that serious offending. If there were to be a re-sentence, in our opinion, the cumulation on charge 3 would have to be increased.

11. The applicant had a long history of prior offending, including offences involving dishonesty. His record of convictions dated back to 2004 and included more than a dozen court appearances since that time. Without canvassing all of his previous convictions, it is pertinent to note that the applicant had been dealt with for numerous counts of theft and burglary, dealing with property suspected of being proceeds of crime and dishonestly receiving stolen goods. He had also been dealt with for contraventions of suspended sentence orders and community corrections orders. Other offending featured damage to property, assaults, possessing drugs and driving offences. In June 2020, the applicant was sentenced to an aggregate period of 6 months’ imprisonment on a range of charges including criminal damage, theft, unlawful assault, wilfully damaging property, failing to answer bail and retention of stolen goods. He was also ordered to serve a community correction order for 24 months following the completion of the sentence. At the time of this offending, the applicant was still serving the uncompleted community correction order imposed in June 2020.

12. The judge was correct to regard the applicant’s rehabilitation prospects as no better than guarded. The applicant has had many opportunities in the past to rehabilitate himself through previous sentencing dispositions and has failed to do so. His offending called for a strong measure of denunciation, general and specific deterrence, punishment, and a degree of community protection.

13. The applicant was able to call upon a number of mitigatory factors which were argued before the sentencing judge, and have been rehearsed again on the application for leave to appeal. All were taken into account by the judge. In particular, the judge mentioned the applicant’s early childhood background, which featured parental abuse of one form or another, the distressing loss of his male role model (his grandfather), various mental impairments which justified the application of the fifth limb of Verdins in the sentencing analysis, his plea of guilty during the COVID-19 pandemic and the onerous restrictions imposed on his incarceration while on remand because of the pandemic. We too accept that all these factors deserve consideration by way of mitigation of sentence.

14. All of that said, as a reflection of his overall criminality, and having regard to his past offending and matters personal to him, a total effective sentence of 5 years’ imprisonment is modest.

15. Mindful of the principle of totality, and in the light of the conclusion we have reached concerning the cumulation on charge 3, if there were to be a re-sentence, any reduction on the sentence for the burglary the subject of charge 2 would be cancelled out by an increase in the amount of cumulation for the theft the subject of charge 3. Alternatively, the sentence on charge 3 could become the base sentence and the amount of the cumulation of the sentence imposed for charge 2 would be greater than the 8 months presently ordered to be served for charge 3. Either way, there would not be a resulting total effective sentence of less than 5 years.

16. It is for these reasons that we do not consider that there is any reasonable prospect that this Court would reduce that total effective sentence, despite the error in the sentence that has been identified.

17. Leave to appeal on proposed ground 1 must therefore be refused.

Proposed ground 2: Were the sentences imposed, orders for cumulation, total effective sentence and non-parole period manifestly excessive?

1. What we have already said in relation to proposed ground 1 largely disposes of the application for leave to appeal in relation to proposed ground 2. We only need to add that we are far from persuaded that any of the individual sentences imposed were wholly outside of the range of sentences available to the judge in the sound exercise of his sentencing discretion. Except, as mentioned, that the amount of cumulation for charge 3 appears light, the amounts of cumulation imposed for other sentences are unremarkable. As is the period set as the non-parole period.

2. Proposed ground 2 has no reasonable prospect of success.

3. Leave to appeal on proposed ground 2 must be refused.

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