White and Stone v The Queen
[2021] VSCA 247
•7 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0060
| JAKE WHITE | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2020 0172
| DYLAN STONE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 August 2021 |
| DATE OF JUDGMENT: | 7 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 247 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1941 (Judge Lacava) |
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CRIMINAL LAW – Appeal – Sentence – Application for extension of time to file application for leave to appeal – Applicants pleaded guilty to charges on joint indictment and individual indictments – Applicants jointly charged with burglary, theft, attempted theft and individually charged with handling stolen goods and being prohibited person in possession of firearm – Whether sentences manifestly excessive – Whether judge erred in considering facts of attempted theft charge as an aggravating circumstance in relation to burglary and theft charges – Extension of time and leave to appeal granted – Appeals dismissed – Sentencing Act 1991 s 5(2)(b), DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant White | Mr P J Smallwood | Sarah Pratt & Associates |
| For the Applicant Stone | Mr S J Tovey | Melasecca Kelly & Zayler |
| For the Respondent | Ms E Ruddle QC | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
KAYE JA:
The applicants, Dylan Stone (‘Stone’) and Jake White (‘White’), were jointly charged with one charge of burglary, one charge of theft, and one charge of attempted theft. Those charges were contained in a joint indictment number C1811786.1. That indictment also contained an additional charge (charge 1) against Stone of handling stolen goods. All of the offending, charged in the joint indictment, took place on 28 January 2018.
In addition, on a separate indictment number J10372736.1 (‘the Stone Indictment’), Stone was charged with one charge of being a prohibited person in possession of a firearm and one charge of handling stolen goods. The offending charged in that indictment occurred on 7 February 2018.
On a separate indictment number J10482760.1 (‘the White Indictment’), White was charged with one further charge of handling stolen goods, which offending took place on 9 February 2018.
Each applicant pleaded guilty, to the above charges, before a judge of the County Court. After pleas presented on their behalf, the judge sentenced Stone to a total effective sentence of six years’ imprisonment with a non-parole period of four years and two months, and White to a total effective sentence of five years’ imprisonment with a non-parole period of three years and six months.
The sentence imposed on Stone was constituted as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
Indictment C1811786.1
1.
Handle Stolen Goods
15 years
1 year
6 months
2.
Burglary
10 years
4 years
Base
3.
Theft
10 years
3 years
4.
Attempted Theft
5 years
1 year
6 months
Indictment J10372736.1
1.
Prohibited Person Possess Firearm
10 years
1 year 6 months
6 months
2.
Handle Stolen Goods
10 years
2 years
6 months
Total Effective Sentence:
6 years
Non-Parole Period:
4 years 2 months
Pre-Sentence Detention:
562 days
6AAA Statement:
8 years’ imprisonment
5 years, 6 months non-parole period
Stone seeks leave to appeal against his sentence on the following grounds:
Ground 1: In all the circumstances:
(a)the sentence imposed on charge 2 and 3 on the joint indictment;
(b) the sentences imposed on the Stone indictment; and
(c) the non-parole period fixed
are manifestly excessive.
Ground 2:In considering the seriousness of charges 2 and 3 on the joint indictment, the learned sentencing judge erred by failing to take into account that no, or very little loss was occasioned to the victims.
Ground 3:The learned sentencing judge erred in taking the facts relied upon in support of charge 4 of the joint indictment into account in aggravation with respect to charges 2 and 3 of the joint indictment.
At the commencement of oral argument, counsel for Stone abandoned ground 2 as a separate ground, and relied on the point, contained in that ground, in support of ground 1.
Both Stone and White were sentenced by the County Court judge on 22 November 2019. The application by Stone for leave to appeal against sentence was filed with the Registry on 20 August 2020, long after the expiration of the 28 day period prescribed by s 279 of the Criminal Procedure Act 2009. Accordingly, Stone has filed with the Registry an application to extend time for leave to file and serve the notice of application for leave to appeal against sentence. For reasons which we will discuss later, the application for an extension of time will be granted.
The sentence imposed on White was constituted as follows:
Charge on Indictment
Offence
Maximum Penalty
Sentence
Cumulation
Indictment No C1811786.1
2.
Burglary
10 years
4 years
Base
3.
Theft
10 years
3 years
4.
Attempted theft
5 years
1 year
6 months
Indictment No J10482760.1
1.
Handling stolen goods
15 years
1 year
6 months
Total Effective Sentence:
5 years
Non-Parole Period Fixed:
3 years 6 months
Pre-Sentence Detention:
285 days
6AAA Statement:
7 years, with a non-parole period of 4 years 8 months
Other Orders:
Forfeiture and disposal orders
White seeks leave to appeal against his sentence on the following two grounds:
Ground 1:The sentences imposed on the charges of burglary and theft (Indictment No. C1811786.1, charges 2 and 3) and the non-parole period fixed were manifestly excessive in that they were manifestly too long.
Ground 2:The sentencing judge erred by taking the facts that informed the charge of attempted theft (Indictment No. C1811786.1, charge 4) into account as an aggravating circumstance in relation to the charges of burglary and theft (Indictment No. C1811786.1, charges 2 and 3).
Circumstances of offending
The joint indictment
At the time of sentence, Stone was 27 years of age and White was almost 34 years of age.
At about 2:30 am on 28 January 2018, Stone, in company with a co-offender Laura Robertson (‘Robertson’), travelled to a property in Wellington Road, Lysterfield, which was the residential property of Steven Loader, his partner Kylie Howard and their six year old son. Stone and Ms Robertson drove to the property in a stolen Jeep Cherokee which itself had stolen number plates attached to it (Charge 1). After their arrival at the Wellington Road property they met up with White, who had driven there by separate means in a white Renault van. The Lysterfield property is a five acre semi-rural property containing a residence that is set back some distance from Wellington Road. There is a large work, entertaining and storage shed at the rear of the property. The shed contained numerous hand tools, power tools, gardening tools, sporting and vehicle memorabilia, motor vehicles, motorcycles and motorcycle equipment that was used by Mr Loader in his tow truck business and also for recreational purposes. The shed and residence were monitored by security cameras.
At about 2:50 am, Stone and White forced entry into the rear shed, and reversed the Renault van into it (Charge 2). They loaded it with a number of valuable items, which included a Harley Davidson motorcycle, a Honda CR50 dirt bike, numerous hand, power and gardening tools, machinery keys, fuel cards, gloves, GPS devices, radios, motor vehicle keys, and motorcycle helmets and protective equipment. They then, in company with Robertson, departed the premises in both vehicles, and drove to Stone’s place of residence in Cranbourne North, where they unloaded the stolen property into the garage (Charge 3).
Subsequently, shortly after 5:30 am, they again drove to the Lysterfield premises, where they searched the shed and work vehicles, stealing more property from there. They then turned their attention to a trailer that was hooked up to another Jeep Grand Cherokee that was in the carport of the premises. The trailer contained two jet skis. At that point, White manoeuvred the security cameras in order to avoid detection. Stone and White then attempted to unhook the trailer containing the jet skis from the Jeep Cherokee (Charge 4). However, they were interrupted when Mr Loader’s dog commenced to bark outside the residence. Mr Loader, who was woken by the noise, stepped outside and verbally confronted the intruders. As a result, Stone and White, with Robertson, departed from the Lysterfield property. The police were contacted by Mr Loader and they arrived a short time later.
On 31 January 2018, police located the Jeep Cherokee that had been driven by Stone. A cigarette butt found in the vehicle was analysed for DNA and matched to Stone. On the same day, police located the white Renault van near White’s premises. Two pairs of gloves, that were inside it, were analysed for DNA and matched to White.
Stone was arrested on 7 February 2018 and White was arrested on 19 February 2018. After their respective arrests, they each made a no comment record of interview.
Stone indictment
As we have noted, the Stone indictment contained two charges, namely, one charge of being a prohibited person in possession of a firearm (Charge 1) and one charge of handling stolen goods (Charge 2).
Between 28 December 2017 and 2 January 2018, a 2014 Kawasaki motorbike was stolen from its owner at his work address in Pakenham. Subsequently, between 11:00 pm on 31 January 2018 and 7:00 am on 1 February 2018, a house in Rowville was broken into while the owner was overseas, and a set of keys to the owner’s 2014 Holden HSV Commodore motor vehicle was stolen. The keys were then used to steal the Commodore from the garage.
On 7 February 2018, police executed a search on the residence of Stone in Cranbourne North where they located the motor cycle and the Holden Commodore (charge 2). During the search they also located a Remington shotgun (charge 1). When police searched the Renault van at the premises, they located numerous items that had been stolen from Mr Loader on 28 January, and that were the subject of Charge 3 on the joint indictment.
White indictment
On 23 January 2018, a 200 litre diesel tank was stolen from a business in Pakenham. Subsequently, on 9 February 2018, a Holden utility vehicle, in which White was a passenger, was involved in a motor vehicle collision in Cranbourne. After the collision, White was photographed by a witness walking away from the utility. A short time earlier, White had been observed to drive the utility vehicle to a service station in Cranbourne. Subsequently, police located the stolen 200 litre diesel tank at the accident scene.
Previous convictions
Stone previous convictions
Stone has a number of previous convictions from nine previous court appearances between January 2010 and March 2017. The convictions were for a number of offences that included theft, theft of a motor vehicle, dishonestly assisting in the retention of stolen goods, dishonestly receiving stolen goods, together with convictions for possession and trafficking of drugs, offences of violence, and road traffic offences.
In July 2012, Stone was sentenced to a total effective sentence of one year and ten months’ imprisonment by the Warrnambool Magistrates’ Court for a number of offences that included reckless conduct endangering serious injury (three charges), two charges of drug trafficking, one charge of dishonestly undertaking in the retention of stolen goods and one charge of handling, receiving or retention of stolen goods. In May 2014, he came before the Warrnambool Magistrates’ Court on charges of trafficking methylamphetamine and possession of cannabis, and was sentenced to four months’ imprisonment, which was suspended for a period of fifteen months. Subsequently, in April 2016, Stone was sentenced by the Melbourne Magistrates’ Court to an aggregate sentence of four months’ imprisonment, with a community correction order for fifteen months, on a number of charges including theft, intentionally destroying property, theft of a motor vehicle, dishonestly receiving stolen goods and committing an indictable offence while on bail.
Finally, in March 2017, Stone was sentenced by the Melbourne Magistrates’ Court to an aggregate sentence of 120 days’ imprisonment on a number of charges including theft, theft of a motor vehicle, dishonestly assisting in the retention of stolen goods, going equipped to steal, dealing in property suspected to having been the proceeds of crime, committing an indictable offence on bail, and drug offences. He was also dealt with by the court, on that date, for contravention of the community correction order. The existing community correction order was varied to extend for a further period of fifteen months, commencing 3 April 2017. Relevantly, the offending in the present case occurred while Stone was subject to that order.
White previous convictions
The applicant White has a number of previous convictions resulting from eight previous court appearances between November 2013 and September 2017. The previous convictions were for offences of dishonesty, drug offences, and family violence offences. On three previous occasions he had been convicted of breaching a community correction order. Relevantly, at the time of the offending, White was subject to a community correction order imposed by the Dandenong Magistrates’ Court on 27 September 2017, some four months before the offending charged in the joint indictment.
In February 2016, White was convicted by the Dandenong Magistrates’ Court on a variety of charges that included possession of a controlled weapon without excuse, drug offences, contravening a family violence order, and dealing with property suspected of being the proceeds of crime. He was placed on a community correction order for twelve months. Twelve months later, on 22 March 2017, White came before the Dandenong Magistrates’ Court on a number of charges, including three charges of theft, three charges of theft from a motor vehicle, one charge of handling stolen property, one charge of going equipped to steal, one charge of obtaining property by deception, and one charge of dishonestly undertaking in the retention of stolen property. He was sentenced to an aggregate period of 22 days’ imprisonment (being the time already held in custody), and placed on a community correction order for twelve months. On 25 August 2017, White again came before the Dandenong Magistrates’ Court on a charge of contravening the community correction order. The original order was varied and White was placed on a further community correction order for twelve months.
One month later, on 27 September 2017, White again came before the Dandenong Magistrates’ Court on a number of charges that included dishonestly undertaking in the retention of stolen goods (three charges), obtaining property by deception, fraudulently altering a licence authority, making counterfeit money and knowingly uttering counterfeit money. As already mentioned, he was then placed on a community correction order for six months.
Pleas
Stone plea
Stone was born in August 1992 in Warrnambool. He is the youngest of three children of his parents. When Stone was three years of age, his parents separated. After the separation, Stone lived with his mother, but, throughout his life, he has maintained a constant and good relationship with his father.
Stone was educated at Terang Primary School, Terang College, and then Cobden Technical College. Apparently he had some learning difficulties, and he has had ongoing literary deficits. After he left school, Stone completed a pre-apprenticeship in plumbing, but he did not proceed to work in that trade. He was employed in concreting and subsequently as a tiler.
At an early age, Stone acquired an interest in riding motorbikes. When he was 15 years of age, he commenced racing at the Warrnambool Motor Cycle Club. Unfortunately, he had an accident on a jump at that time, as a result of which he sustained a fractured vertebra. He was transferred by air to the Austin Hospital where the injury was treated with the insertion of rods and screws. Two years later, when Stone was 17 years of age, he sustained two further fractured vertebrae which required major surgery, involving the insertion of further rods.
Following the second operation, Stone was prescribed Oxycontin for pain relief. The prescription of that medication precipitated the commencement of problems which Stone has subsequently had with illicit drugs. In the years that followed, he abused opioids and used other drugs, including methylamphetamine. Subsequently, with the assistance of his brother he was able to cease abusing opioids. Since he has been imprisoned, he has remained drug free, and a number of clean urine screens were tendered in evidence at the plea.
It would appear that Stone has had some history of mental health issues. On the plea, it was put that he was diagnosed with post-traumatic stress disorder and depression when he was 13 years of age after the first motorcycle accident. In addition, it was put that he had more recently been prescribed medication to treat an anxiolytic condition. However, no report from a medical practitioner or psychologist was tendered on behalf of Stone on the plea.
After his arrest, Stone was initially held in the Port Philip Prison, but he was subsequently transferred to Barwon Prison, where he was placed in solitary confinement.
On the plea, in mitigation, counsel for Stone relied on the early plea of guilty. It was put that the period of pre-sentence detention (some 616 days) was the longest continuous period of imprisonment he had served. Stone enjoyed excellent family support. The fact that he was then drug free, and had undertaken educational courses while in prison, boded well for his rehabilitation.
Following his arrest, Stone had been sentenced, on 28 March 2018, by Ringwood Magistrates’ Court on a number of offences, for which he was sentenced to three months’ imprisonment. As a consequence, that period of imprisonment was to be subtracted from the 616 days pre-sentence detention which would otherwise have been available to Stone. Accordingly, it was submitted, the principle of totality needed to be taken into account in the determination of the sentence to be imposed on Stone.
White plea
White is one of four brothers. He completed Year 11 at Burwood Secondary College. After he left school, White undertook an apprenticeship as a butcher. Subsequently, he opened a butcher shop with his brother in Beaconsfield. The business was initially successful.
It appears that White’s problems with the law commenced in his late twenties. At that time, he suffered a number of tragic incidents, including the premature death of his mother, and the breakdown of his only long-term romantic association. As a consequence, he resorted to the heavy consumption of alcohol, and then graduated to abusing methylamphetamine and GHB. It was in the context of his addiction to those substances that he became involved in the commission of a number of offences which were reflected in his criminal history.
On the plea, it was submitted that White had remained free of drugs during the period of his incarceration, and drug test results to that effect were tendered in evidence. In addition, White had attended a number of courses while in custody.
White was examined for the purpose of the plea by Mr David Ball, a forensic psychologist, in July 2019. Mr Ball estimated that White is of normal intelligence. He was of the opinion that White does not satisfy any DSM 5 diagnostic criteria for mental illness, personality disorder, mood disorder, substance abuse disorder or other pervasive clinical syndrome. He expressed the view that White’s management in the community, when released, would present few if any challenges.
On the plea, it was submitted that White should be sentenced to a term of imprisonment constituted by the time that he had already served in custody. Alternatively, it was put that the court should, in addition, impose a community correction order in view of Mr Ball’s opinion that his prospects for rehabilitation were good.
Judge’s reasons for sentence
In his reasons for sentence,[1] the judge described the offending, that was the subject of the joint indictment, in the following terms:
This was clearly organised and sophisticated offending. It portrays a deal of planning and was clearly driven by the desire to make money. The objects stolen were clearly valuable. The burglary and theft was conducted in a brazen manner, particularly the fact that you were both so confident in your criminal behaviour that you chose to go back to the scene of the crime a second time.[2]
[1]DPP v White [2019] VCC 1941 (‘Reasons’).
[2]Ibid [18].
The judge considered that the offending by Stone, that was the subject of the charges in the separate indictment, was also very serious. The possession of guns by criminals is a prevalent offence, and the charge of handling stolen goods related to valuable items. Accordingly, his Honour considered that he must have full regard to the sentencing purposes of general and specific deterrence as well as denunciation.[3]
[3]Ibid [20].
The judge accepted that by their pleas of guilty, both White and Stone had saved the time and expense of a joint trial, they had each admitted responsibility for their crimes, and they had facilitated the administration of justice.[4] Although the pleas were not made at the earliest opportunity, the judge regarded the pleas as being made at an early time in the proceeding.[5]
[4]Ibid [23].
[5]Ibid [24].
In respect of charges 2 to 4 in the joint indictment, the judge referred to the victim impact statement of Mr Loader’s partner, Ms Kylie Howard, who was an occupant of the Lysterfield property. The judge noted that the offending in the charges had left Ms Howard feeling unsafe in her own home and had affected many aspects of her everyday life.[6]
[6]Ibid [25].
The judge then gave separate consideration to the matters personal to each of Stone and White. He regarded Stone’s prospects of rehabilitation as being ‘at best … guarded’.[7] The judge noted that, by reason of the sentence in the Magistrates’ Court imposed after Stone’s arrest, the principle of totality was relevant.[8] His Honour also accepted that Stone’s time in custody had been more burdensome following his transfer from Port Philip Prison to Barwon Prison, where he had been held in solitary confinement.[9] The judge also accepted that, as Stone’s present period of incarceration had been the longest continuous period that he had been in prison, the principle of totality was an important factor in determining his sentence.[10]
[7]Ibid [31].
[8]Ibid [33].
[9]Ibid [34].
[10]Ibid [35].
In respect of White, the judge similarly noted that since his arrest, White had received a sentence of imprisonment in the Magistrates’ Court for unrelated offending. Accordingly, the judge recognised that he must have regard to the sentencing principle of totality.[11] His Honour rejected the submission, made on behalf of White, that the time already served in custody was sufficient punishment. The judge accepted that White sincerely wished to rid himself of drugs, and that he had good family support and employment prospects. However, his Honour considered that his prospects for rehabilitation, outside a prison setting, remained ‘guarded.’[12] In both cases, he considered that the offending was too serious and that the sentencing principles of general and specific deterrence and denunciation must be given appropriate application.[13]
[11]Ibid [43].
[12]Ibid [44].
[13]Ibid [45].
Application by Stone for an extension of time to file notice of appeal
Before considering the proposed grounds of each applicant in support of the application for leave to appeal against sentence, it is convenient, first, to deal with the application by Stone for an extension of time within which to file the notice of appeal.
The application is supported by an affidavit sworn by the applicant’s present solicitor, Mr Pietro Melasecca. In the affidavit, Mr Melasecca stated that he was instructed by Stone that, shortly after sentence, Stone requested his previous solicitors to appeal on his behalf, and for that purpose he deposited funds into the former solicitors’ trust account. The applicant was advised by the solicitors that senior counsel had been requested to provide an advice and prepare grounds of appeal. Stone also instructed Mr Melasecca that he understood that the process was underway and that he had been advised by his previous solicitors that they had obtained an extension of time for the purpose of filing the appeal. Subsequently, when Stone instructed Mr Melasecca on 24 March 2020, Stone discovered that an appeal had not been lodged on his behalf. On 28 May 2020, Stone lodged funds into the trust account of his present solicitors. On the same date, Mr Melasecca obtained the judge’s reasons, the summary of the prosecution opening, and a copy of the indictments. On 19 June 2020, he briefed counsel to prepare the written case. However, counsel was provided, not with the summary of opening in relation to the plea, but with documents relevant to the potential trial of Stone. Ultimately, on 13 July 2020, the solicitors received the correct summary of plea opening which was forwarded to counsel. Two weeks later, counsel provided a draft written case which was finalised on 31 July 2020.
The application for an extension of time is opposed by the respondent. It is submitted that the applicant’s explanation for the delay of about three months before instructing his current solicitors was ‘self-serving’ and that the affidavit does not provide a sufficient explanation for that delay. Further, it is submitted that the affidavit fails to provide an adequate explanation for the additional delay between the date upon which Stone’s current solicitors were instructed and the date of filing of the application for leave to appeal against sentence.
The principles that apply to an application for an extension of time have been rehearsed in a number of decisions in this Court. For present purposes, they were sufficiently stated in the following passage in Barber v The Queen:[14]
The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time. In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it. In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material. Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the appeal notwithstanding such delay.[15]
[14][2018] VSCA 232.
[15]Ibid [3] (Kyrou and Kaye JJA) (citations omitted).
Plainly, the period of delay in the present case was quite substantial. We do not consider that the affidavit of Stone’s solicitors provides an adequate excuse for the whole of that period of delay. On the other hand, as we will discuss, the sentences imposed on each applicant were, at the least, particularly stern, sufficiently so as to justify the grant of leave to appeal in each case. In those circumstances, and notwithstanding the length of the delay, we are disposed to accede to the application by Stone for an extension of time within which to bring the application for leave to appeal against sentence.
Ground 1 of each application
Submissions
Counsel for White and counsel for Stone respectively advanced similar submissions in support of ground 1 of their respective applications. It is convenient to deal with ground 1 of each application together.
In support of ground 1, counsel for White submitted that the sentences imposed on charge 2 (burglary) and charge 3 (theft) of the joint indictment fell well outside the range of sentences imposed in a number of cases which, it was contended, were appropriate comparable sentencing decisions. In advancing that submission, counsel relied on a number of previous sentencing decisions which, in his written case, he outlined in some detail. For present purposes it is sufficient to summarise the effect of those sentencing decisions as follows:
·Buovac v The Queen.[16] The offender pleaded guilty to 41 indictable offences, 15 of which were charges of burglary. He had a relevant criminal record and was serving a community correction order at the time of the offending. An aggregate sentence of two years and three months’ imprisonment was imposed on 13 of the burglary charges, one charge of attempted burglary, 13 charges of theft and one charge of attempted theft. In combination with the sentences imposed for other offences, the offender was sentenced to a total effective sentence of four years and six months’ imprisonment with a non-parole period of three years.
·Clark v The Queen.[17] The offender pleaded guilty to one charge of burglary, one charge of theft and one charge of criminal damage. He had a relevant criminal record. On the charge of burglary he was sentenced to imprisonment for one year. A total effective sentence of two years and three months’ imprisonment was imposed, with a non-parole period of one year.
·Jomaa v The Queen.[18] The offender pleaded guilty to six charges of burglary, and ten charges of theft. He had a relevant criminal record. On the charges of burglary, no individual sentence exceeded one year and six months’ imprisonment. In total, he was sentenced to a total effective sentence of six years and nine months’ imprisonment with a non-parole period of five years’ imprisonment.
[16][2018] VSCA 302.
[17][2013] VSCA 98.
[18][2014] VSCA 103.
Counsel for White also relied on a number of sentencing decisions in the County Court which included the following:
·DPP v Purdy.[19] The offender pleaded guilty to 34 indictable offences, including 15 charges of burglary and 11 charges of theft. He had a relevant criminal record. On 32 of the charges (including the burglary charges) he was sentenced to an aggregate sentence of three years’ imprisonment.
·DPP v Galt.[20] The offender pleaded guilty to 44 indictable offences, 13 of which were charges of burglary and 22 of which were charges of theft. He had a relevant criminal record, and committed the offences while he was on a current suspended sentence. A total effective sentence of 23 months’ imprisonment was imposed in combination with an 18 month community correction order. Pre-sentence detention of 389 days was not reckoned as served.
·DPP v Ludwig.[21] The offender pleaded guilty to 14 indictable offences which included four charges of burglary and eight charges of theft. One charge of burglary involved the theft of three vehicles, and another charge of burglary resulted in the theft of two Ferrari motor vehicles, one of which was valued at $1.5 million and the other at $2 million. He had a significant criminal record. He committed the offences while he was on parole. On the charges of burglary, no individual sentence exceeded three years’ imprisonment. In total he was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years.
·DPP v Wallace.[22] The offender, after a trial, was convicted by the jury of two charges of burglary, eight charges of theft and one charge of criminal damage. One of the burglary charges was committed at a rural property with two co-offenders, in which they stole a 4-wheel drive motor vehicle and a motorcycle. The offender had a criminal record. His childhood had been dysfunctional and disadvantaged. Some of the propositions outlined in R v Verdins[23] applied in mitigation. On the charges of burglary he was sentenced to three years’ imprisonment. He was sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years and eight months.
[19][2017] VCC 1984.
[20][2016] VCC 560.
[21][2017] VCC 744.
[22][2018] VCC 1100.
[23](2007) 16 VR 269; [2007] VSCA 102.
In the present case, counsel for White referred to four mitigating factors which his client had relied on in the plea. First, White had pleaded guilty at a time which the judge regarded as an early plea, and it was accompanied by remorse. Secondly, White had no criminal record until he reached the age of 27 years. At that time his mother died from brain cancer. The applicant left home, and became involved with a woman who was a drug user. It was in that context that White became addicted to illicit substances and involved in criminal conduct. Thirdly, counsel referred to the steps that White had taken towards his rehabilitation while in custody. Fourthly, White had spent some 356 days on remand which were not available as pre-sentence detention, because during that period he had been subject to other sentences. In that context, it was submitted, the principles stated by the Court in R v Renzella[24] were applicable.
[24][1997] 2 VR 88.
Counsel for White submitted that, in view of those mitigating circumstances, the sentence imposed on his client was well outside the current range of sentences imposed for such offences, and as such was outside the range of sentencing options available to the judge.
Counsel for Stone adopted and relied on the submissions advanced by counsel for White under ground 1. In addition, he submitted that the sentences imposed on charges 2 and 3 are more akin to sentences that have been imposed in cases involving aggravated burglary and theft, including the following:
·Bowyer v The Queen.[25] In that case there were three co-offenders, two of whom were armed with unregistered firearms. They confronted the occupier who was then in a workshop. After the victim fled, the offenders ransacked the premises causing significant damage. The offender Bowyer was sentenced to three years and six months’ imprisonment on the charge of aggravated burglary, with a total effective sentence of three years and nine months’ imprisonment.
·Rooney v The Queen.[26] The offender and his co-offenders gained entry into a house late at night while the occupants were asleep. They stole numerous items of value, before taking keys from inside the premises which they used to steal two luxury motor vehicles (a Mercedes Benz vehicle and a BMW vehicle) which had a combined value of $97,000. The offender had previous convictions for aggravated burglary and theft and was on a community correction order at the time of the offending. On the charge of aggravated burglary he was sentenced to three years’ imprisonment. His total effective sentence was four years and one month’s imprisonment with a non-parole period of two years and nine months’ imprisonment.
·Hull v The Queen.[27] The offender, with his co-offender, broke into a house in the early hours of the morning while armed with a shotgun, tomahawk and steel bar. At the time the occupants were asleep. On their approach to the house they were confronted outside by one of the occupants, which resulted in a gun being pointed at his head. The offender was sentenced to three years and six months’ imprisonment for aggravated burglary and one year imprisonment for theft, with a total effective sentence of four years’ imprisonment. A non-parole period of two years and six months was fixed.
[25][2013] VSCA 358.
[26][2017] VSCA 275.
[27][2019] VSCA 243.
In the present case, counsel for Stone relied on a number of mitigating circumstances. He had been in custody for 653 days, of which 562 days could be taken into account as pre-sentence detention. That period was the longest period he had spent in custody. While Stone was in custody he had undertaken and completed a number of courses. He had a supportive family who could offer him work upon his release. While incarcerated in Barwon Prison, he had been held in solitary confinement for 22 hours each day. Counsel further submitted that it was relevant that there was no evidence of any actual loss to the victims, as most of the items that were stolen were recovered by police.
Counsel for Stone therefore submitted that the sentences imposed on charges 2 and 3 on the joint indictment were wholly outside the range of sentencing options available to the judge. Counsel further contended that the sentences imposed on the separate Stone indictment were also manifestly excessive. There was no evidence as to how and what circumstances Stone had come into possession of the motorcycle and the Commodore motor vehicle, and therefore he could only be sentenced on the basis that he had possessed those items for a single date. Stone had no previous history for offending relating to firearms. The firearm itself was not in a condition in which it could be used, and it was not operable. It was not loaded and no ammunition was located in Stone’s possession. In those circumstances, it was submitted, the sentences imposed on the separate indictment were manifestly excessive.
In response, senior counsel for the respondent accepted that the sentences imposed in respect of charges 2 and 3 on the joint indictment were stern, and for that reason she accepted that the applicants should be granted leave to appeal. However, she submitted, the judge was entitled to take into account that the burglary was a serious example of a serious offence. The burglary reflected a planned and sophisticated approach in which the three offenders used two vehicles. They attended the premises in Lysterfield in the early hours of the morning, in circumstances in which it was a ‘soft target’. The offending itself was brazen, which was reflected by their conduct in subsequently returning to the property in order to attempt to steal further items. Although the burglary was not an aggravated burglary, the occupiers of the premises were home at the time.
Counsel for the respondent further noted that each applicant had a number of serious criminal convictions. In particular, White had had the advantage of some six community correction orders in the past, each of which he had breached. He was subject to a community correction order when he committed the current offences. Accordingly the judge was entitled to be ‘guarded’ in his estimate of White’s prospects of rehabilitation. In those circumstances, it was submitted, both general deterrence and specific deterrence were important sentencing considerations.
Similarly, counsel noted, Stone had a number of criminal convictions extending over seven years and reflecting serious offending. His prospects of successful rehabilitation were regarded by the judge as being guarded. At the time of the offending he was subject to a community correction order, and he had previously breached two such orders.
Counsel for the respondent further noted that while the previous sentencing decisions relied on by the applicants were relevant as indicating the current sentencing practice, nevertheless, as emphasised by the High Court in DPP v Dalgliesh (a pseudonym),[28] current sentencing practices are but one of a number of considerations which the sentencing judge was required to take into account. Each previous sentence was decided on its own individual facts, and do not dictate the appropriate sentence which should be imposed in the present case.
[28](2017) 262 CLR 428; [2017] HCA 41 (‘Dalgliesh’).
Ground 1 — analysis and conclusion
In order to succeed, on the ground that the sentences imposed on them were manifestly excessive, the applicants must demonstrate that the sentences were wholly outside the range of sentencing options available to the sentencing judge. In other words, it must be demonstrated that the sentences, that are the subject of ground 1, are so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour’s reasons for sentence.[29]
[29]Clarkson v The Queen (2011) 32 VR 361, 364 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
The starting point, in considering ground 1 in each application, is that the offences, that were the subject of charges 2 and 3 on the joint indictment, were serious instances of those two offences. The offending was not spontaneous or opportunistic. Rather it was carefully planned and executed. The Lysterfield property was a vulnerable target, and no doubt it was selected for that reason. The burglary was committed in company, and each participant had his or her individual role. The offences were committed in the early hours of the morning at a time in which it was highly likely that the occupants of the property were asleep in their home, as they indeed were. As the judge noted, the offences were brazen in their nature. The items that were stolen in the course of the burglary were quite valuable and important to their owner. In that respect, it is significant that the applicants stole, amongst other matters, items that were part of Mr Loader’s tools of trade.
Fortunately, most of the items that were the subject of the burglary and theft were recovered. However, and notwithstanding that consideration, the offending itself had a significant impact on the victims. As we have noted, a number of the items were work related tools belonging to Mr Loader who, albeit for a relatively brief time, was deprived of the use of them. The victim impact statement of Ms Howard eloquently described the ongoing traumatic effect of the burglary that was committed on the property that was her home. She stated that since the burglary she has felt unsafe in her own home. She conducts business as a hairdresser at home, and is now hesitant to take on any new clients. She finds herself constantly checking that the doors to the premises are locked, and any single noise at night tends to wake her. She concluded her victim impact statement by stating that the offending ‘took a massive toll on us’ as it was necessary for Mr Loader and her to upgrade the security and change all the locks on the house and vehicles.
It may be interpolated that that impact, described by Ms Howard, is hardly surprising. It is important that the courts should not to take for granted the ongoing effects that burglaries, such as that committed in the present case, can have on the feelings of security and safety of a householder, who is the victim of such a crime, in his or her own home.
Most relevantly, both White and Stone each had relevant and significant previous convictions, in particular for offences of dishonesty. White had had the advantage of a number of previous community correction orders, that were directed to his rehabilitation, and he had breached each of them. He was subject to such an order at the time he committed the offences in the present case. Stone had already been subject to previous sentences of imprisonment, albeit of a relatively short duration. It was clear that those sentences had been insufficient to deter him from the offending in the present case. As with White, he was subject to an existing community correction order at the time of the offending.
In those circumstances, the sentencing purposes of general deterrence and specific deterrence were of particular importance. It was necessary that the sentences imposed on each applicant, on charges 2 and 3, be sufficient to send a clear message, in particular to recidivist offenders, that the patience of the courts with such offending is exhaustible, and that ultimately such repeated offending will result in lengthy terms of imprisonment. In addition, in the case of each of Stone and White, it was necessary that the sentences be of sufficient duration in order to instil in each of them the unequivocal message that if they continue on their path of criminality, they will spend considerable periods of the remainder of their lives in custody.
Each of the applicants were able to call on some mitigating circumstances. However, those circumstances were, in the context, relatively limited. Neither of them were particularly youthful, and they were not at an age at which the court extends particular leniency in order to give emphasis to the prospects of rehabilitation. Further, and in any event, the judge, with considerable justification, regarded the prospects of rehabilitation of each of them as being guarded. It is commendable that, during their terms of imprisonment, each of them have so far embarked on a process of rehabilitation which, it is hoped, will continue. However, in determining their sentences, it was appropriate for the judge to adopt a qualified view as to their prospects.
As we have discussed, the principal consideration relied on by each applicant was that the sentences imposed on charges 2 and 3 were substantially longer than those imposed by the courts in the cases to which counsel helpfully referred. Section 5(2)(b) of the Sentencing Act 1991 provides that in determining the sentence for an offender, a court must (among other matters) have regard to current sentencing practices. However, it is important to bear in mind, as the High Court has emphasised in Dalgliesh, current sentencing practices are only one of a number of factors which must be taken into account in the exercise of the sentencing discretion in a particular case.[30]
[30]Dalgliesh (2017) 262 CLR 428, 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ); [2017] HCA 41.
The principles relating to the use of comparable cases, to demonstrate current sentencing practices, have been discussed in a number of decisions, including those of the High Court[31] and of this Court.[32]
[31]See, eg, Wong v The Queen(2001) 207 CLR 584, 591 [6]; [2001] HCA 64 (Gleeson CJ); Hili v The Queen(2010) 242 CLR 520, 534 [44], 535–6 [48]–[49]; [2010] HCA 45 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen(2014) 253 CLR 58, 74 [40]–[41]; [2014] HCA 2 (French CJ, Hayne, Kiefel and Bell JJ); R v Pham(2015) 256 CLR 550, 558–9 [26]–[28]; [2015] HCA 39 (French CJ, Keane and Nettle JJ); Dalgliesh(2017) 262 CLR 428, 453–4 [82]–[83]; [2017] HCA 41 (Gageler and Gordon JJ).
[32]See, eg, Hudson v The Queen (2010) 30 VR 610, 617–18 [28]–[33]; [2010] VSCA 332 (Ashley, Redlich and Harper JJA); Nguyen v The Queen[2016] VSCA 198, [71]–[72] (Redlich JA); DPP (Cth) v Thomas(2016) 53 VR 546, 606–11 [171]–[187]; [2016] VSCA 237 (Redlich, Santamaria and McLeish JJA).
In Lieu v The Queen,[33] those principles were summarised in the following terms:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[34]
[33][2016] VSCA 277.
[34]Ibid [46] (Beach and Kaye JJA).
As we have noted, the sentences imposed on charges 2 and 3 of the joint indictment do exceed, by some measure, the sentences imposed in the cases to which counsel referred. As counsel for the respondent properly acknowledged, if not for the substantial number of previous convictions of each applicant, those sentences could be regarded as being manifestly excessive. However, as we have discussed, in view of the significant previous convictions of each applicant, it was necessary for the judge to give particular weight to the sentencing purposes of general deterrence and specific deterrence. Taking that consideration into account, and bearing in mind the serious aspects of the offending, while we are persuaded that the sentences imposed on charges 2 and 3 were particularly stern, we are not persuaded that they were wholly outside the range of sentencing options available to the judge in the circumstances of the case. Accordingly, we are not persuaded that those sentences were manifestly excessive.
Under ground 1 of his application for leave to appeal, counsel for Stone also contended that the sentences imposed on the two charges contained in the separate Stone indictment were manifestly excessive. We accept that the sentence imposed on charge 1 — being a prohibited person in possession of a firearm — was quite stern, in view of the circumstance that the firearm in question was not capable of operation, it was not loaded, and no ammunition was found in the possession of Stone. Nevertheless, as noted by the judge, each of the two offences are quite serious by their own nature, as indicated by the maximum sentences of 10 years’ imprisonment prescribed in respect of them. At the time of sentencing, Stone had manifested a complete disregard for his legal obligations and was embarked on a continued course of criminal offending. Again, the sentencing purposes of general and specific deterrence were relevant to the determination of the sentences on the two charges in question. While the sentences were, as we have said, somewhat stern, nevertheless we are not persuaded that they were manifestly excessive.
In those circumstances, while we would grant each applicant leave to appeal under ground 1, we are not satisfied that in either case that ground should succeed.
White ground 2; Stone ground 3
Submissions
Ground 2 of the application by White, and ground 3 of the application by Stone, are directed to the passage in the judge’s reasons for sentence, to which we have referred, in which the judge stated:
The burglary and theft was conducted in a brazen manner, particularly the fact that you were both so confident in your criminal behaviour that you chose to go back to the scene of the crime a second time.[35]
[35]Reasons [18].
In support of the ground relied on, counsel for each applicant submitted that the fact that the offenders returned to the property, that had been the subject of the burglary alleged in charge 2, was relevant to an assessment of the circumstances of the charge of attempted theft in charge 4. However, it was submitted, it was not relevant to an assessment of the gravity of the charges of burglary (charge 2) or theft (charge 3). It was submitted that the judge, in determining the gravity of the offences charged in charges 2 and 3, impermissibly took into account the circumstance that they subsequently returned to the property. Accordingly, it was submitted, the judge fell into specific error in his sentencing decision.
In response, counsel for the respondent submitted that the judge did not impermissibly take into account, as an aggravating feature of charges 2 and 3, that the two applicants returned to the scene of the offending in order to commit the offence that was the subject of charge 4. It was submitted that that conduct was relevant to the seriousness of the burglary and theft charges. The return by the applicants to the house was not an element or aspect of the attempted theft that was the subject of charge 4.
White ground 2; Stone ground 3 — analysis and conclusion
In assessing the gravity of the offending that is the subject of charges 2 and 3, it would have been impermissible for the judge to have taken into account, as an aggravating circumstance, a factor that was relevant to the determination of the gravity of the offending that was the subject of charge 4, or which of itself constituted a separate uncharged offence.[36] However, in the present case, we are not persuaded that, in the passage of the judge’s sentencing reasons to which we have just referred, his Honour contravened that principle.
[36]Cf R v Newman & Turnbull [1997] 1 VR 146.
As the judge noted, the burglary and theft were, themselves, conducted in a brazen manner. In that respect, it was permissible for the judge to support that proposition on the circumstance that the applicants were so confident in committing those two crimes, that they chose to return to the scene of the crime for a second time. That is, the return of the applicants to the scene of the crime reflected and manifested their state of mind at the time of the offending that was the subject of charges 2 and 3, notwithstanding that there was a gap of a few hours between that offending and the applicants’ return to the property. In our view, the inference drawn by the judge to that effect was open and permissible. In viewing the case in that way, the judge did not treat, as an aggravating circumstance in respect of charges 2 and 3, any aspect of the offending that was the subject of charge 4. For those reasons, we do not accept that the judge made the specific sentencing error that is the subject of ground 2 of the White application for leave to appeal and of ground 3 of the Stone application for leave to appeal.
Summary of conclusions
For the foregoing reasons, we have reached the following conclusions:
(1)The applicant Stone should be granted an extension of time within which to bring the application for leave to appeal against sentence.
(2)The application by Stone for leave to appeal against sentence should be allowed, but the appeal dismissed.
(3)The applicant White should be given leave to appeal against sentence, but the appeal dismissed.
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