Tscherepko v The Queen
[2010] VSCA 299
•17 November 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| SIMON TSCHEREPKO | S APCR 2008 0816 |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE and HARPER JJA and T FORREST AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 September 2010 |
| DATE OF JUDGMENT | 17 November 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 299 |
| JUDGMENT APPEALED FROM | R v Tscherepko (Unreported, County Court of Victoria, Judge Smallwood, 9 September 2008) |
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CRIMINAL LAW – Sentencing – Appellant pleaded guilty to one count of aggravated burglary, unlawful imprisonment, assault, threat to kill and two counts of theft – Vulnerable victim at night on residential property – Whether sentence of eight years’ imprisonment with a non-parole period of six years manifestly excessive – Evidence – Fresh evidence – Whether evidence of hardship faced in prison should have been put before sentencing judge – Appeal allowed – Appellant re-sentenced to a total effective sentence of seven years and six months’ imprisonment with a non-parole period of five years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Doyle | Revill & Papa Lawyers |
| For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I have had the advantage of reading in draft the reasons for judgment of T Forrest AJA. I agree that the appeal should be allowed and that the appellant be re-sentenced as his Honour proposes.
HARPER JA:
I agree.
T FORREST AJA:
Late in the evening of 9 February 2008 the appellant, Simon Tscherepko, broke into a house in Market Street Kensington. Asleep upstairs was Stella Pericleous. Her male partner was at work. The appellant made sufficient noise in searching for valuables to wake Ms Pericleous. She came down the stairs wearing only a t-shirt. She is a diminutive woman. She screamed. The appellant moved quickly to her, grabbed her and stifled her screams. He led her back upstairs, questioned her as to the presence of money, led her back downstairs, took her glasses off and recovered a small sum of money and her credit cards. His Honour, the learned sentencing judge, remarked that ‘at that stage a serious example of aggravated burglary had taken place.’
At that point the appellant directed Ms Pericleous back upstairs, told her to lie on the bed face down and put her hands behind her back. He tied her hands together with electrical cord. He tied her feet together in the same way. He then joined the two cords together. Having hogtied (to use his Honour’s words) this semi-naked diminutive young woman in her own home, the appellant set about searching her home for her valuables at his leisure. He sought instructions as to their whereabouts. He required the PIN numbers of her bankcards, and threatened to come back and kill her if the numbers were wrong. He stayed for about an hour and stole about $3000 worth of various types of property, including a mobile phone.
At 3.30am using one of the stolen cards and the PIN procured from the young woman, the appellant withdrew $1000 from that account. Further attempts to withdraw money were declined. He used the stolen telephone on a number of occasions and was arrested later that day. He remained mute during the interview process.
The appellant pleaded guilty to an indictment containing six counts and was sentenced as follows:
Count 1Aggravated burglary four years’ imprisonment.
Count 2Unlawful imprisonment five years’ imprisonment.
Count 3Assault six months’ imprisonment.
Count 4Threat to kill four years’ imprisonment.
Count 5Theft nine months’ imprisonment.
Count 6Theft nine months’ imprisonment.
Eighteen months of the sentence imposed on Counts 1 and 4 were directed to be served cumulatively upon each other and upon the sentence imposed on Count 2. Thus an effective maximum sentence was imposed of eight years with a minimum term of six years before becoming eligible for parole.
The appellant admitted an unimpressive prior history that extended over 16 years and included 40 convictions for burglary, 38 for theft, two for armed robbery, two for robbery, two firearms offences and one each for intentionally causing injury and arson. In total, he has 125 prior convictions from 17 court appearances.
Leave to appeal was granted, it seems, on the basis that his Honour was not informed of the incarceration of the appellant on unrelated matters which were later set aside. As the parties have become better informed of the appellant’s correctional history, it transpires that there is nothing in this ground and it was abandoned.
Grounds 2, 3 and 4 were argued together. The appellant argues that the learned sentencing judge erred in his characterisation of the nature and gravity of the offence of false imprisonment (Ground 2), failed to reflect the principle of totality (Ground 3) and that the sentence is manifestly excessive (Ground 4).
A good deal of the oral argument concerned his Honour’s use of the term ‘gratuitous’ in characterising the appellant’s conduct in ‘hogtying’ his victim and then continuing with his search of her premises. Mr Doyle argued that in fact this was not gratuitous conduct at all, but necessary to prevent the victim from escaping. Gratuitous conduct, as the argument was developed, is conduct that is unnecessary to achieving the primary object of the offending and perhaps intended to add to the victim’s humiliation. For my part, I do not consider that his Honour used the term in this sense. At paragraph [8] his Honour said this:
It is clear from the Victim Impact Statement and, just straight out human experience, that to tie someone in that situation would be an extraordinary terrifying experience. She posed absolutely no threat to you. She is a very small person and it must have been patently clear to you she could do you no harm. I am told that she was tied up so she could not escape. You had every opportunity to simply leave the premises. She did not have her glasses, she could not see and the tying up of her was not only terrifying and a disgraceful crime but gratuitous.
I consider that his Honour was saying no more than the conduct in tying up and thus disabling the victim was an entirely unnecessary escalation of the appellant’s unlawful activities. He had secured access to the premises, stolen money, removed her glasses, been directed by her to her wallet and other parts of the house. She was tiny, semi-naked and sight impaired. He could have just left. He elected not to do that. In that sense I consider that the appellant’s conduct was gratuitous and I can discern no error in his Honour’s characterisation of this aspect of the offending.
In support of Grounds 3 and 4, it was argued that his Honour had failed to give effect to the principle of totality and in particular, of the eight year head sentence imposed, three years was as a result of orders for cumulation. I can see no error in this approach. His Honour took some care to set out his conclusion that the false imprisonment count was objectively the most serious offence and that some accumulation was appropriate for the aggravated burglary and the threat to kill counts, as they added significantly to the overall culpability of the appellant.
His Honour adverted to the principle of totality and expressed a desire to avoid a crushing sentence. Whilst the sentence imposed is stern, the appellant’s prior history and the objective gravity of his offending calls for such an approach. I consider Grounds 2, 3 and 4 are not made out.
Counsel for the appellant sought to add an additional ground of appeal. Proposed Ground 5 is expressed in these terms:
New evidence concerning the burden of the appellant’s imprisonment shows that a different sentence should be passed.
During the course of the plea no reference was made on the appellant’s behalf to the fact that he had been imprisoned in a protection unit at the Metropolitan Remand Centre from March 2008 until May 2008, and thereafter had been held in a protection unit at Port Phillip Prison up to and including the time of his sentencing in September 2008. The circumstances of the appellant’s imprisonment were clearly relevant to the exercise of the sentencing discretion[1] and should have been before his Honour.
[1]R v Bangard (2005) 13 VR 146, 149; R v ZMN (2002) 4 VR 537; R v Males (2007) VSCA 302.
It is undisputed that this Court may, in limited circumstances, permit evidence to be adduced of matters that have occurred since the sentence was imposed.[2] Those circumstances were comprehensively outlined in R v Nguyen[3] by Redlich JA. Where evidence is available that relates to events which have occurred since the sentence was imposed and which demonstrates the true significance of facts in existence at the time of sentence then it may be received. Ultimately the question is whether, on all the material before the court, a different sentence ought be substituted to avoid a miscarriage of justice.[4] The new evidence may be received
despite the fact that the appellant did not refer to the ‘pre-existing state of affairs in the course of the plea.’[5]
[2]R v Eliasen (1991) 53 A Crim R 391, 394; R v Nguyen [2006] VSCA 184.
[3][2006] VSCA 184, [36].
[4]R v Eliasen (1991) 53 A Crim R 391, 396; R v Rostom [1996] 2 VR 97, 101; R v Nguyen [2006] VSCA 184, [36].
[5]R v Nguyen [2006] VSCA 184, [36].
Evidence
The appellant has filed three affidavits with the Court:
(a)Affidavit of Timothy Hargrave, Offence Management Supervisor, Port Phillip Prison sworn 14 September 2010;
(b)Affidavit of the appellant sworn 14 September 2010;
(c)Affidavit of Trevor Pickering, General Manager, Corrections Victoria sworn 21 September 2010.
The following is disclosed from that material:
(a)The appellant was placed into protective custody at the Metropolitan Remand Centre on 18 March 2008.
(b)He was transferred to Port Phillip Prison on 12 May 2008. He was remanded there.
(c)He requested to be placed into protection due to his fears for his safety. This was due to ‘outside prison issues concerning a prisoner with several internal contacts’.[6]
(d)He has remained in the protection unit since May 2008. He is a prisoner in the Sirius East Unit.
(e)His yard time for exercise is restricted.
(f)He has limited types of employment available.[7]
(g)Movement around the prison is restricted.
(h)He has more limited access to visitors.
[6]Affidavit of Trevor Pickering para 5.
[7]He is currently working as a cleaner.
In relation to the above the appellant maintains that his access to courses, the library and the gym is also limited as is his access to health services. He also asserts
that he suffers insults and threats from mainstream prisoners and has subjective concerns about the food quality for protection prisoners. No deponents were sought to be cross-examined and Mr Pickering’s affidavit in reply did not deal with a number of the specific allegations made by the appellant.
Counsel for the respondent accepts that the appellant’s current conditions of imprisonment are different from that which would be the case were he a mainstream prisoner.
I consider it unnecessary and perhaps impossible to determine with any precision a specific quantifiable diminution in quality of the appellant’s current terms of imprisonment as compared to mainstream prisoners. I consider that his current arrangements are significantly more burdensome than mainstream prisoners and have been so for the last 30 months. I also consider that there is a substantial prospect that the prisoner will remain in a protection unit until his release.
As I have observed, I am of the view that the appellant’s ‘protection’ status should have been brought to the attention of the learned sentencing judge. At that stage the appellant had been a protection prisoner for six months. That fact was clearly relevant to the sentencing discretion:[8]
The extent to which it is to be taken into account in the prisoner’s favour depends upon the source of the need for protection and of course the particular circumstances and likely duration of the protection.[9]
[8]R v Bangard (2005) 13 VR 146.
[9]R v Males (2007) VSCA 302, [5] (Whelan AJA).
In the circumstances, I consider that the application for leave to amend the grounds of appeal to add proposed Ground 5 ought to be granted. The fact that the appellant has remained in protective custody for two years since he was sentenced demonstrates the enduring nature of his protection, which was only of a few months duration at the time of sentence. If his Honour had been aware of the appellant’s protection he was obliged to take it into account.
It follows from these remarks that I consider that the original sentence imposed was entirely appropriate based on the material before his Honour. I am also of the opinion that, on all of the material before the Court, a different sentence ought be substituted to avoid a miscarriage of justice.
Conclusion
Whilst I propose a moderation of both the head sentence and minimum term to reflect the new material before the Court, I consider that such moderation ought be relatively subtle. The appellant’s conduct on 9 February 2008 was disgraceful, opportunistic and cowardly. The moderation that I propose has been achieved by alteration of the orders for cumulation, rather than interfering with the actual sentences imposed in his Honour’s carefully structured sentence.
I propose that the appeal be allowed, the sentence imposed by the court below be set aside and in lieu thereof it be ordered as follows:
On Count 1, the appellant be sentenced to four years’ imprisonment.
On Count 2, the appellant be sentenced to five years’ imprisonment.
On Count 3, the appellant be sentenced to six months’ imprisonment.
On Count 4, the appellant be sentenced to four years’ imprisonment.
On Count 5, the appellant be sentenced to nine months’ imprisonment.
On Count 6, the appellant be sentenced to nine months’ imprisonment.
I would direct that 15 months of the sentence imposed on Count 1 and 15 months of the sentence imposed on Count 4 be served cumulatively upon each other and the sentence imposed on Count 2. The effective maximum sentence is seven years and six months and I would direct that the appellant serve a minimum term of five years and six months before becoming eligible for parole.
I would also order that a period of 1012 days has been served by way of pre-sentence detention and that that declaration be entered into the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I propose that the Court declares that, but for the appellant’s plea of guilty, he would have been sentenced to an effective term of nine years and six months’ imprisonment with a minimum non-parole period of seven years and six months.
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