Zorkau v The Queen
[2021] VSCA 184
•24 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0258
| STEPHEN ZORKAU | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 June 2021 |
| DATE OF JUDGMENT: | 24 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 184 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1363 (Judge Mullaly) |
---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
---
CRIMINAL LAW – Appeal – Sentence – Two charges of theft, one charge of burglary, one charge of attempted burglary – Aggregate sentence 2 years and 8 months’ imprisonment – Non‑parole period 1 year and 10 months – Whether judge mischaracterised gravity and moral culpability – Whether judge took into account material relating to non‑charged criminal activity – Whether sentence manifestly excessive – Whether judge breached parity principle – Application for leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Nathwani | Criminal Lawyers Geelong |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA:
Introduction and summary
On 18 August 2020, the applicant pleaded guilty to two charges of theft,[1] one charge of burglary[2] and one charge of attempted burglary.[3] On 1 September 2020, Judge Mullaly of the County Court imposed an aggregate sentence of 2 years and 8 months’ imprisonment with a non-parole period of 1 year and 10 months.[4]
[1]Crimes Act 1958 s 74(1). The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act s 76. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act ss 76, 321M and 321P(1)(a). The maximum penalty is 5 years’ imprisonment.
[4]DPP v Zorkau [2020] VCC 1363 (‘Sentencing remarks’).
The applicant seeks leave to appeal from his sentence on the following grounds:[5]
1The Learned Judge fell into specific error in finding that the offences were of a high gravity with [a] high moral culpability for the Applicant.
2The Learned Judge fell into error in considering material relevant to offences the Applicant was not charged with.
3In all the circumstances, the sentence imposed was manifestly excessive.
4In all the circumstances, the sentence imposed upon the Applicant as compared to the sentences imposed on his co-accused, Humm and Tsatsaronis, gives rise to a justifiable sense of grievance.[6]
[5]All references to grounds of appeal in these reasons are to proposed grounds of appeal.
[6]The fourth ground was added by leave granted on 12 May 2021. At the hearing of the application for leave to appeal, the applicant abandoned reliance on the sentence imposed upon Tsatsaronis in relation to ground 4.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
The offending occurred between 8 and 13 December 2019. The applicant was a party to a criminal enterprise with three co-accused, Humm, Tsatsaronis and Vautier. The co-accused are alleged to have offended over a lengthier period. In the case of Humm, that period was from 6 October until 19 December 2019. As at the date the applicant was sentenced, the committal proceedings for the co-accused had not yet been finalised. After the applicant was sentenced, Tsatsaronis and Humm pleaded guilty. Tsatsaronis was sentenced by Judge Mullaly on 1 February 2021 and Humm was sentenced by the same judge on 11 May 2021. Vautier’s plea is due to be heard on 12 July 2021. Humm’s sentence is discussed below under ground 4.
At approximately 12:30 am on 8 December 2019, the applicant attended the Shell service station situated at Wallington Road, Ocean Grove and conducted planning for a burglary and theft at that location. He did not proceed with the burglary on that occasion.
At around 1:10 am on 8 December 2019, the applicant was driven to the BP service station at 365 Portarlington Road, Moolap. The driver parked across the road from the service station and the applicant walked across the road. He was carrying a large sack or doona cover. For approximately two minutes, he unsuccessfully attempted to jemmy the lock from the front glass doors with a crowbar, causing approximately $1,000 damage (charge 1: attempted burglary). At 2:12 am, the applicant called Humm and described his attempt to gain access to the service station.
Between 11:00 pm on 11 December 2019 and 2:30 am on 12 December 2019, unknown offenders attended residential premises in Corio. They entered the premises and stole credit cards, jewellery and a silver Land Rover Discovery station wagon. The 40-year-old owner and her four children were sleeping in the house at the time.
Between 3:19 am and 3:41 am on 12 December 2019, the applicant and Humm exchanged a series of text messages. The applicant stated that he had a silver car and asked if he could ‘put [it] at the spot not reported yet’. Humm gave the applicant directions to the location of a burnt-out, stolen Mitsubishi Pajero. At 8:11 am, the applicant sent a text message to Humm, clarifying that the car was ‘a Land Rover Discovery’.
On 13 December 2019, after the events discussed below relating to charges 3 and 4, the stolen Land Rover Discovery was located in Fyansford. The vehicle was completely burnt out and all identifying numbers were destroyed. The owner attended the location and identified the vehicle as hers. She was uninsured and the theft has cost her approximately $10,000. She was distraught over losing her vehicle.
The applicant was not charged in relation to the aggravated burglary in Corio or the arson of the Land Rover Discovery, but with being in possession of the vehicle in the period between the commission of those offences, on 11 and 12 December 2019 (charge 2: theft).
At 10:13 pm on 12 December 2019, the applicant and Humm had a telephone conversation. They discussed the location of the stolen Land Rover Discovery and then had the following exchange:
ZORKAU: ‘You coming out tonight?’
HUMM: ‘Yeh what are you doing?’
ZORKAU: ‘Cigarettes Ocean Grove and probably Port Highway’.
HUMM: ‘What’s the best way to do that cause obviously they are gonna come from Geelong so we are already gonna be that side of town yeh’.
ZORKAU: ‘I reckon we just do it’.
ZORKAU: ‘I reckon we go Ocean Grove and on the way back, I’m sure there is another we can do or something, we could try do a safe or something, the other boys are keen’.
At 2:10 am on 13 December 2019, the applicant and one or more co‑offenders attended the Ocean Grove Shell service station, which he had attended on 8 December 2019, in the stolen Land Rover Discovery.[7] Using various tools, they forced entry into the premises via the front doors, causing $40,978.19 worth of damage (charge 3: burglary). They then used crowbars to force open cigarette cabinets. They stole 475 packets of cigarettes valued at $18,622.73, which they placed into a child’s doona cover (charge 4: theft).
[7]The summary of prosecution opening states that the applicant attended the service station with Humm and an unidentified co-offender. In his sentencing remarks in relation to the applicant, Judge Mullaly did not state that Humm was present. As appears from [52] below, in his sentencing remarks in relation to Humm, Judge Mullaly stated that Humm was not present at the Ocean Grove burglary but ‘encouraged the offending by virtue of telephone conversations [he] had with [the applicant] earlier that evening’.
Applicant's personal circumstances
The applicant was aged 29 at the time of offending and sentencing.
The applicant was born in Geelong. His parents were addicted to heroin and effectively abandoned him at the age of nine. From that age, he was cared for by his aunt and uncle. They had a number of children to look after and the family environment was chaotic.
The applicant left school at the age of 16. Since then, he has worked in various labouring jobs. At the time of the offending, he was unemployed.
The applicant started to abuse cannabis at the age of 17 and methylamphetamines from the age of 19. He has also abused prescription drugs. At the time of offending, he had fallen back into drug abuse.
The applicant commenced offending at the age of 20. He committed his first dishonesty offence (theft) when he was aged 22. His criminal record includes burglary, theft, forgery and dealing with property suspected of being the proceeds of crime, as well as property damage, driving, drug and weapon offences. He has received short prison sentences previously, as well as a suspended sentence which he breached. His longest previous prison sentence was 12 months’ imprisonment in May 2016 for burglary, theft and related offences, with a non-parole period of six months. He was released on parole after six months and did not breach his parole.
On 12 July 2019, the applicant was placed on a 12-month community correction order (‘CCO’) for dishonestly assisting in retention of stolen goods, negligently dealing with the proceeds of crime, committing an indictable offence while on bail and two drug offences. On 5 December 2019, he was placed on a further 12-month CCO in respect of burglary, unlicensed driving and fraudulent use of an identifying number authorised by the Road Safety Act 1986. He was subject to these two CCOs when he committed the current offending.
At the plea hearing, the applicant tendered a letter in which he apologised to his victims and acknowledged that his offending had had a financial and emotional impact. Defence counsel also conceded that the applicant’s offending had caused a financial cost to his victims.
Sentencing remarks
The judge described the applicant’s offending as part of a well-planned and organised series of burglaries and related thefts on mainly commercial premises.[8] The judge acknowledged that the applicant was not a leader of the criminal enterprise, but said that he was an enthusiastic participant, acting on directions and providing intelligence to the leaders. The judge also noted that the applicant was able to engage in his own offending.[9] The judge added as follows:
Organised crimes targeting small businesses such as service stations is to be condemned. They were brazen, planned crimes, one followed by the next. The gravity and moral culpability are high, although as I have said already, [the applicant was] not a leader or organiser, but one of the men doing as directed. Nonetheless, each part or person within this organisation or enterprise played an important role. As well as condemnation, what is most prominent is the need for deterrence to anyone minded to embark upon this sort of offending.[10]
[8]Sentencing remarks [1].
[9]Sentencing remarks [3].
[10]Sentencing remarks [15].
The judge stated that there were much more serious examples of these crimes and that these types of offences are routinely dealt with in the Magistrates’ Court. However, he emphasised that, because the offending was part of an organised criminal enterprise and the applicant’s co-accused would be dealt with by the County Court, it was important that one court deal with all co-accused.[11]
[11]Sentencing remarks [24]–[25]. See [4] above.
The judge stated that the theft and burning of the Land Rover was part of the ‘modus operandi of the criminal enterprise’, namely, stealing cars, using them in committing commercial burglaries and then burning them. He said that the applicant was being sentenced for theft in relation to the Land Rover on the basis that he was driving the stolen car when he committed the burglary in Ocean Grove. He remarked that the applicant was not being sentenced for crimes connected to breaking into the car owner’s house or the arson.[12] He then referred to the car owner’s victim impact statement, stating as follows:[13]
It may be that with the regularity of car thefts, the courts have become a bit immune to the individual impact on the owners of having their car stolen. In this case, it is important to consider the relevant parts of the victim impact statement of the owner, whose loss of her car in the current circumstances had [a] very significant impact. She wrote:
As I have mentioned before, I am a disability care worker, and one thing that is very important in this job is that we have a car. Without my car, I cannot work. I was unable to work for two months, and still work occasionally whenever I can borrow a friend’s car. I feed four mouths, as well as my own. I am living off vouchers given to me by the government, even though I have a job, but no means to get to it. I’ve lost one job already, where I used to work, as well as in a school kitchen, as I’m not able to go on a regular basis and have very few shifts because of it. Till I get a car, this will continue, and getting a car is a long way away, as I have very little savings with the amount of work I get. The reason for losing shifts in the disability work is that I couldn’t travel to work and take my clients to their necessary appointments. The most integral part of my job is to take my clients out of their homes to go to different places, such as to take them to appointments and go grocery shopping. I still do not own a car, which impacts my earnings to date.
[12]Sentencing remarks [8]–[9].
[13]Sentencing remarks [10].
The judge characterised the applicant’s criminal history as ‘troubling’.[14] He noted that the applicant was subject to two CCOs at the time of the offending, one of which was imposed only three days before the offending. He remarked that the earlier CCO included a short gaol term. The judge described these facts as aggravating factors which indicated a need for specific deterrence.[15]
[14]Sentencing remarks [16].
[15]Sentencing remarks [16]–[17].
The judge stated that the applicant’s breaches of CCOs and a suspended sentence lowered his confidence in the applicant’s capacity to rehabilitate.[16]
[16]Sentencing remarks [18]–[19].
The judge noted that the applicant had commenced a methadone program while in custody for the current offending, which was providing him with some stability. However, the judge expressed concern that, unless the applicant is able to abstain entirely and long-term from drugs, he will have difficulties in ‘staying out of trouble’.[17] The judge stated that the applicant’s prospects of rehabilitation were not ‘forlorn’, but they were ‘guarded at best’.[18]
[17]Sentencing remarks [22].
[18]Sentencing remarks [26].
The judge stated that the applicant’s guilty plea was early and that he had expressed remorse in his apology letter. The judge also took into account that gaol was much harder on prisoners in the light of the restrictions imposed due to the COVID-19 pandemic.[19]
[19]Sentencing remarks [23]–[24].
The judge stated that, in arriving at the aggregate sentence, he gave proper weight to the matters in mitigation going to the applicant’s rehabilitation, as well as the need for denunciation, specific and general deterrence and protection of the community.[20] He also said that he had applied the principles of totality and parsimony.[21]
[20]Sentencing remarks [27].
[21]Sentencing remarks [28].
Ground 1: Gravity of offending and moral culpability
The applicant submitted that, within the context of burglary offences, the judge mischaracterised the offending as of high gravity and of high moral culpability. This was said to be because many aggravating factors were absent from this offending. According to the applicant, the following factors meant that neither the gravity of the offending nor the applicant’s moral culpability were high:
(a)Apart from the theft of the motor vehicle, the offences were committed at commercial, not residential, premises.
(b)The offending was not sophisticated and only one of the incidents was planned.
(c)The attempted burglary in Moolap was opportunistic and the offending in Ocean Grove involved only limited planning.
(d)Whilst the Ocean Grove offending used a stolen car, no stolen vehicle was used for the attempted burglary in Moolap.
(e)Nothing was stolen during the attempted burglary in Moolap.
(f)The theft in Ocean Grove was relatively modest, comprising only 475 packets of cigarettes totalling just over $18,600.
(g)The applicant was acting under the direction of others.
(h)Whilst the three co-accused offended over the course of two months, the applicant’s offending only occurred over six days.
The applicant contended that the judge’s mischaracterisation of the gravity of the offending and of his moral culpability meant that the sentence was materially more onerous and punitive than his offending merited.
The Crown submitted that assessing gravity and moral culpability by reference to the absence of aggravating factors was unhelpful and that the focus should be on the offending as it was, not what it could have been.[22] In any event, it contended that the factors enumerated by the applicant did not constitute an impressive array of absent aggravating features.
[22]The Crown relied upon Stephens v The Queen (2016) 50 VR 740, 747 [26]; [2016] VSCA 121.
The Crown argued that, whilst there might be more serious examples of these offences, the salient features of the offending and other surrounding circumstances indicate that there was no error in the judge’s assessment of the gravity of the offending and the applicant’s moral culpability. According to the Crown, these elements were high because the offending constituted planned, organised criminal activity targeting small businesses.
In my opinion, ground 1 is not reasonably arguable.
If the judge’s description of the gravity of the offending and the applicant’s moral culpability as ‘high’ was meant to convey that they were at the severe end of the spectrum of seriousness, he would have erred. However, it is clear from the sentencing remarks as a whole that this is not what the judge meant. In particular, the judge acknowledged that there were more serious examples of the offences and that the types of offences for which the applicant pleaded guilty were routinely dealt with in the Magistrates’ Court. The judge also accepted that the applicant was not a leader in the offending.
The applicant’s offending formed part of a criminal enterprise. The judge found that the applicant was an enthusiastic participant in the enterprise and played an important role. The offending was not isolated and involved some planning. The judge correctly described it as ‘brazen’. The applicant was serving two CCOs at the time of the offending. Understood in this context, the judge’s use of the adjective ‘high’ in describing the gravity of the offending and the applicant’s moral culpability was appropriate and did not indicate that the exercise of the sentencing discretion had miscarried.
I have not found helpful the applicant’s list of aggravating factors which were said to be absent in the present case. I agree with the Crown that the focus should be on the features present in the offending, rather than those that were absent. For the reasons I have outlined, having regard to the features of the offending and the applicant’s role in it, the judge did not err by describing the gravity of the offending and the applicant’s moral culpability as ‘high’.
Ground 2: Uncharged offences
The applicant submitted that, because he was not charged with the Corio aggravated burglary or arson of the Land Rover, he could not be sentenced for that offending. He acknowledged that the judge stated that he was not being sentenced for that offending. However, he contended that, by referring to the victim impact statement of the owner of the vehicle immediately before characterising his offending as of a high gravity, the judge impermissibly punished him for the aggravated burglary and the arson.
The Crown submitted that the quote from the car owner’s victim impact statement in the sentencing remarks makes no specific reference to the impact of the aggravated burglary or arson, but was restricted to the impact of the loss of the car.[23] The Crown argued that the quote was plainly relevant because the applicant had possession of the car and had pleaded guilty to its theft. It noted that defence counsel at the plea had accepted that the applicant’s conduct had resulted in financial cost to the victims.[24] It contended that the judge was entitled to have regard to the cost to the victim of not having the use of her car resulting from its theft.
[23]See [22] above.
[24]See [19] above.
In my opinion, ground 2 is devoid of merit. The judge expressly stated that he did not take into account the aggravated burglary and the arson, and only quoted from the parts of the victim impact statement of the owner of the stolen vehicle that related to the loss of use of the vehicle. In these circumstances, it is not reasonably arguable that the judge took into account offending for which the applicant was not charged, namely, the aggravated burglary and the arson of the stolen Land Rover.
Ground 3: Manifest excess
The applicant submitted that, in all the circumstances and based upon current sentencing practice, the sentence imposed was manifestly excessive.
The applicant contended that the judge should have given greater weight to the mitigatory factors upon which he relied, including his guilty plea. The applicant also noted the following: he had not offended for two years; his offending was over a short period relative to his co-accused; the stolen cigarettes were worth only $18,600; and he was not the principal offender. He relied upon the factors set out at [28] above that informed the gravity of the offending and his moral culpability, and emphasised that the judge had accepted that this type of offending is regularly dealt with in the Magistrates’ Court.
The applicant argued that, whilst a review of comparative cases is not always helpful, the following recent sentences support his submission that the sentence imposed was outside the range of sentences available to the judge:
(a)In Director of Public Prosecutions v Hepburn,[25] the offender pleaded guilty to seven charges of burglary, seven charges of theft and property damage offences. The offending occurred over a period of two months and $780,000 worth of property was stolen. The offender was sentenced to 15 months’ imprisonment with a 2-year CCO requiring 350 hours of community work. In the present case, the applicant noted that the offender in Hepburn was younger than he was and had predominately juvenile prior convictions.
(b)In Director of Public Prosecutions v Findlay,[26] the offender pleaded guilty to 43 charges of burglary, six charges of attempted burglary and 26 charges of theft. The offending was committed over a period of nearly six months and cash totalling $18,049.20 was stolen. The offender had an extensive criminal history and a traumatic upbringing. The offences were committed in breach of a suspended sentence and two thefts were committed while the offender was on bail. He was sentenced to a total effective sentence of 3 years and 9 months’ imprisonment. A co-offender was sentenced in the Magistrates’ Court for 17 charges of burglary, nine charges of theft and one charge of attempted burglary in relation to stolen cash totalling $4,171. On appeal to the County Court, the co-offender was sentenced to 18 months’ imprisonment with a non-parole period of 10 months.
(c)In Director of Public Prosecutions v Purdy,[27] the offender pleaded guilty to 15 charges of burglary, two charges of attempted burglary, 11 charges of theft and associated property damage offences. In total, he stole cash of approximately $33,200 and caused damage of approximately $9,000. Most of the offending was committed over a six-week period while he was on bail and subject to a drug treatment order. He had a significant criminal history, including burglary and aggravated burglary offences. He received an aggregate sentence of 3 years’ imprisonment.
(d)In Director of Public Prosecutions v Bowd,[28] the offender pleaded guilty to 71 dishonesty offences, including 40 charges of burglary, 26 charges of theft and three charges of attempted burglary. The offences were committed over eight months, were planned and involved the use of equipment. The offender stole property valued at approximately $332,000 and caused damage in the vicinity of $50,000. He was on bail when he committed most of the offences and had prior convictions that included imprisonment for dishonesty offending. On appeal to this Court, he received an aggregate sentence of 7 years’ imprisonment for the 71 dishonesty offences. In the present case, the applicant submitted that he received nearly 40 per cent of the sentence imposed upon Bowd ‘for significantly less property obtained, less offences committed over a much shorter span’.
[25][2015] VCC 352 (‘Hepburn’).
[26][2017] VCC 1618 (‘Findlay’).
[27][2017] VCC 1984 (‘Purdy’).
[28][2019] VSCA 246 (‘Bowd’).
The Crown submitted that the matters upon which the applicant relied do not indicate that the sentence was manifestly excessive. According to the Crown, the applicant’s two-year gap in offending had come to an end prior to the current offending. It emphasised that the applicant was subject to two CCOs at the time of the current offending, one of which was imposed only three days prior to the attempted burglary in Moolap.
The Crown contended that, whilst these types of offences can be dealt with summarily, the judge explained that the matter was before the County Court because the offending was committed as part of an organised criminal enterprise.
The Crown argued that current sentencing practices are only one of a number of factors to be taken into account in the instinctive synthesis process and is not, of itself, determinative of error. It submitted that Bowd was not comparable on the facts. It further submitted that the attempted comparison failed to take into account the principle of totality, which necessarily compresses sentences such as in Bowd. In relation to Hepburn, Findlay and Purdy, the Crown contended that none of the three sentences, either alone or in combination, indicate error in the sentence imposed upon the applicant in the present case. This was said to be because there was a range of potential sentences properly open to the judge and the sentence imposed was well within that range.
In my opinion, ground 3 is not reasonably arguable.
The aggregate sentence of 2 years and 8 months’ imprisonment cannot be regarded as manifestly excessive in the light of the following circumstances of the offending and of the applicant:
(a)The offences were not isolated, but were brazen and formed part of an organised criminal enterprise.
(b)The offending involved some planning and targeted small businesses, such as service stations.
(c)Although the applicant was not a leader of the criminal enterprise, he was an enthusiastic participant and played an important role.
(d)An aggravating feature of the offending was that the applicant was then serving two CCOs, one of which was imposed only three days prior to the offending.
(e)The sentence was for four separate offences, three of which (the burglary and the two thefts) carried a maximum sentence of 10 years’ imprisonment, and the fourth (attempted burglary) carried a maximum sentence of 5 years’ imprisonment.
(f)Specific deterrence was an important sentencing consideration, having regard to the applicant’s relevant prior criminal history.
(g)General deterrence and protection of the community were important sentencing considerations, having regard to the applicant’s involvement in an organised criminal enterprise.
(h)The judge found that the applicant’s prospects of rehabilitation were ‘guarded at best’.
I accept that the applicant was able to call in aid significant mitigating factors, particularly his early guilty plea and remorse. However, these mitigating factors do not mean that the sentence was manifestly excessive. Rather, they mean that the sentence would have been substantially higher in the absence of the mitigating factors.
Whilst so-called comparable cases can be treated as yardsticks which can assist in identifying the relevant sentencing range, they are not to be treated as precedents to be applied or distinguished.[29] I have considered the cases of Hepburn, Findlay, Purdy and Bowd upon which the applicant relied. I have not obtained any assistance from those cases. The circumstances of the offending and of the offenders in those cases were not relevantly comparable to the circumstances of the current offending or of the applicant.
[29]Kelly v The Queen [2020] VSCA 171, [52]; Cooper v The Queen [2020] VSCA 288, [77].
Ground 4: Parity
Humm’s sentence and judge’s remarks relating to it
The sentence imposed upon the applicant by Judge Mullaly on 1 September 2020, as set out at [1] above, may be summarised in tabular form as follows:
Charge Offence Maximum Aggregate sentence 1 Attempted burglary [Crimes Act ss 76, 321M and 321P(1)(a)] 5 years 2 years and 8 months 2 Theft [Crimes Act s 74(1)] 10 years 3 Burglary [Crimes Act s 76] 10 years 4 Theft 10 years Total effective sentence: 2 years and 8 months’ imprisonment Non-parole period: 1 year and 10 months
On 11 May 2021, Humm was sentenced by Judge Mullaly in relation to 14 charges in accordance with the following table:[30]
[30]DPP v Humm [2021] VCC 589 (‘Humm’). Humm was also sentenced for a summary offence. That sentence is not presently relevant.
Charge Offence Maximum Sentence Cumulation 1 Theft 10 years 10 months 1 month 2 Theft 10 years 2 years aggregate Base 3 Burglary 10 years 4 Criminal damage [Crimes Act s 197(1)] 10 years 5 Burglary 10 years 22 months aggregate 10 months 6 Theft 10 years 7 Handling stolen goods [Crimes Act s 88] 15 years 10 months 1 month 8 Arson [Crimes Act s 197(1) and (6)] 15 years 20 months 8 months 9 Arson 15 years 20 months 8 months 10 Burglary 10 years 14 months 4 months 11 Handling stolen goods 15 years 9 months Nil 12 Handling stolen goods 15 years 4 months Nil 13 Handling stolen goods 15 years 6 months Nil 14 Trafficking in a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 71AC] 15 years 10 months 1 month Total effective sentence: 4 years and 9 months’ imprisonment Non-parole period: 2 years and 11 months
The above 14 offences were committed by Humm between 6 October and 19 December 2019 and many of them are connected.[31] Only charge 10 against Humm and charge 3 against the applicant related to the same incident, namely, the Ocean Grove burglary on 13 December 2019.[32]
[31]Humm [2021] VCC 589, [2].
[32]See [12] above.
In his sentencing remarks, the judge described Humm’s involvement in the Ocean Grove burglary as follows:
On 13 December 2019, another burglary that took place at the Shell service station in Ocean Grove. While you were not present during this burglary you encouraged the offending by virtue of telephone conversations you had with Mr Zorkau earlier that evening. You have pleaded guilty to this offence on the basis of your complicity.[33]
[33]Humm [2021] VCC 589, [9].
Humm was aged 31 when he was sentenced. The judge found that Humm was from a close family and was consistently employed since he was 16. He said that Humm’s work history was to his credit and he had gained a number of qualifications in the construction industry. He noted that, due to Humm’s strong work ethic, he purchased his first home by the age of 18 and his second home by the age of 21.[34]
[34]Humm [2021] VCC 589, [18].
The judge stated that Humm’s first long relationship broke down in 2016 when he was aged 25. He said that the breakdown of the relationship occurred in the context of Humm abusing methylamphetamines, which increased as a consequence of the relationship ending. The judge said that it was around this time that Humm started offending. He remarked that, at first, Humm committed driving offences, which quickly developed into committing dishonesty and weapons offences. He noted that the latter offences resulted in Humm serving a six‑month term of imprisonment followed by a CCO. He stated that Humm breached that CCO, as well as another CCO imposed for noncompliance with the first CCO. He held that Humm did not as yet have ‘an embedded history of crime’.[35]
[35]Humm [2021] VCC 589, [19].
The judge noted that Humm was in a relationship of six years and he had two young children with his current partner.[36] He said that Humm’s current partner remained supportive of him, as did his parents, siblings and wider family.[37] He concluded that Humm’s prospects of rehabilitation were ‘solid’ and ‘positive’.[38]
[36]Humm [2021] VCC 589, [20].
[37]Humm [2021] VCC 589, [21], [23].
[38]Humm [2021] VCC 589, [25], [26].
The judge relevantly stated as follows in respect of the principle of parity:
I concluded with respect to the other men I have already sentenced, that Mr Zorkau was more of a follower. … In my view, the intercepted telephone calls and the number of crimes you were involved in reveal your role was more prominent as an organiser of this criminal organisation …
…
Given that your crimes were committed with other co-accused who I have sentenced, parity is a live issue. Both Tsatsaronis and Zorkau had more extensive criminal histories and were on court orders at the time of the offending. Against that, the personal circumstances, the role and the extent of the criminality favour the other men in comparison to you.
… Zorkau was the least involved and has the fewest number of crimes. You were involved in crimes with both men, but those two were not involved in crimes with each other.
… I consider your sentence must be longer than each of those men, due to differences in your role, especially vis-à-vis Zorkau [and] your greater number of crimes …
…
Unlike the other offenders given the number and different types of offences, I will not impose an overall aggregate sentence, but do so for the burglary and thefts and criminal damage involved in each of the ram raids on the service stations where you were present. In doing so, I keep well in mind the principles of totality and parity. By that, I mean I have considered and then reconsidered the individual sentences, the orders for cumulation and the appropriate comparison with other offenders. In doing so, I have adjusted to ensure that the sentences and the total sentence and non-parole period fits in a proportionate way the totality of your criminality no more and no less.[39]
[39]Humm [2021] VCC 589, [14], [27]–[29], [32].
Parties’ submissions
The applicant submitted that a comparison of his criminality and sentence with the criminality and sentence of Humm gives rise to a justifiable sense of grievance on his part. This was said to be particularly so in the light of the judge’s finding that Humm was a driving force and organiser of the commercial burglaries. The applicant emphasised that Humm’s offending covered a longer period than his offending and that Humm’s guilty plea was some time after his own guilty plea. The applicant accepted that his criminal history was more extensive than Humm’s, but he argued that, on any view, Humm’s criminality was significantly more serious than his own offending.
The applicant noted that Humm received a 14-month sentence for the Ocean Grove burglary, of which he was the organiser. According to the applicant, although the applicant received an aggregate sentence, the judge must have imposed a similar — if not greater — sentence upon the applicant in respect of the same burglary.
The Crown submitted that, whilst the applicant and Humm were involved in the same criminal enterprise, the differences in both the charged offending and personal circumstances were considerable. It contended that Humm received a significantly higher sentence than the applicant because he was charged with approximately three times as many offences as the applicant and was acknowledged to be an organiser of the criminal enterprise. However, the Crown argued that the appropriate sentence for Humm was not derived by simply multiplying the sentence imposed upon the applicant by three. According to the Crown, because Humm was sentenced on 14 charges, the application of the principle of totality will have somewhat compressed his sentence.
The Crown argued that the applicant failed to provide an analysis of the nature of the offending for which each man was sentenced beyond a mere recitation of the charges. It emphasised that the applicant and Humm only had a single charge in common, namely, the Ocean Grove burglary. It submitted that it was questionable whether Humm’s sentence of 14 months for that offending, on its face, raised any real parity issue in the first place. Further, it contended that the roles of the two men in the offending were substantially different: whereas the burglary was actually carried out by the applicant, Humm’s plea to that charge was on the basis that he encouraged (rather than organised) the offence in an earlier telephone conversation.
Further, the Crown argued that, in each case, there are a number of relevant considerations personal to the offender that will affect the sentence, some of which work in opposing directions. It emphasised, by way of example, that Humm was an organiser of the criminal enterprise, but his prospects of rehabilitation were found to be ‘solid’. It contrasted these factors with the applicant’s more extensive criminal history. It was said that reasonable minds might differ in relation to the ultimate effect on sentence of these matters.
The Crown submitted that all of these factors combined to dilute any potentially available parity argument such that appellate interference was not legitimately warranted. It contended that, in this case, the applicant simply could not demonstrate that any sense of grievance was justifiable.
Decision on ground 4
In my opinion, ground 4 is not reasonably arguable.
The only offence that is common to the applicant and Humm is the Ocean Grove burglary. Humm was sentenced to 14 months’ imprisonment for that offence, but the precise sentence that was imposed upon the applicant for the offence is not known, as the judge imposed an aggregate sentence of 2 years and 8 months’ imprisonment for all of the applicant’s offending. A direct comparison of sentences is therefore not possible. The applicant’s submission that the judge must have imposed a similar or greater sentence is speculative.
Even if it is assumed in the applicant’s favour that the judge imposed a similar sentence, the principle of parity would not be infringed for the following reasons.
First, the applicant’s involvement in the burglary, and his moral culpability in relation to it, were greater than that of Humm. That is because the applicant committed the burglary, whereas Humm was not present but was complicit by encouraging the applicant to commit it in a telephone discussion earlier in the evening. The applicant had also scoped out the service station a few days prior to the burglary and planned its commission.
Secondly, an aggravating feature of the applicant’s offending, which was absent in relation to Humm, was that the applicant was serving two CCOs at the time of the Ocean Grove burglary.
Thirdly, the applicant had a more extensive relevant criminal history than Humm.
Fourthly, Humm’s prospects of rehabilitation were found by the judge to be ‘solid’ and ‘positive’, whereas those of the applicant were found to be ‘guarded at best’.
Fifthly, Humm was being sentenced for 14 offences, many of which were connected. Accordingly, the judge had to have regard to Humm’s overall offending in applying the principle of totality. As submitted by the Crown, this would have had a compressive effect on individual sentences. The judge’s sentencing remarks quoted at [56] above are consistent with this.
It is true that Humm’s offending extended over a longer period than that of the applicant and that Humm occupied a more senior position in the criminal enterprise than the applicant. However, the judge’s sentencing remarks clearly demonstrate that he took all these matters into account in determining the differential in the sentences imposed upon the applicant and Humm, particularly in the context of the principle of totality.
It is also true that the applicant pleaded guilty at a much earlier stage than Humm. However, the judge explained in his sentencing remarks relating to Humm that the timing of Humm’s guilty plea ‘was complicated by an understanding of the concepts of complicity for the Ocean Grove burglary where [Humm was] not present but involved as criminally associated through [his] encouragement’.[40]
[40]Humm [2021] VCC 589, [26].
Overall, the differential in the sentences imposed upon the applicant and Humm — including in respect of the non-parole period fixed for each of them — are readily explicable by the matters referred to above. The differential has a rational basis and was reasonably open to the judge.[41] It is not such as to give rise to a justifiable sense of grievance on the part of the applicant.
[41]See Zaia v The Queen [2020] VSCA 9, [83]–[84].
Conclusion
For the above reasons, the application for leave to appeal will be refused.
---
6
0