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Abela v The Queen [2014] VSCA 266 (24 October 2014)

Last Updated: 27 October 2014

SUPREME COURT OF VICTORIA

COURT OF APPEAL

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CRIMINAL LAW – Application for leave to appeal against conviction – Indictment on Commonwealth offence signed by Victorian prosecutor who had not been delegated the powers of the Commonwealth Director of Public Prosecutions pursuant to Director of Public Prosecutions Act 1983 (Cth) s 31 – Appeal allowed – Conviction quashed.

CRIMINAL LAW – Sentence – Continuing criminal enterprise (CCE) offences – Adequacy of reasons for CCE sentences – Structural arguments as to sentences discouraged – Comparison with non-CCE sentences unhelpful – R v Arundell [2003] VSCA 69 and R v Grossi [2008] VSCA 51; (2008) 23 VR 500, applied – Manifest excess not made out – Appeal dismissed.

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ASHLEY JA

REDLICH JA:

1 Following a plea of guilty in the County Court, on 6 June 2013 the appellant, Jason Abela, was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three and a half years’ imprisonment in respect of a total of 33 offences, one of which was an offence against a law of the Commonwealth. All the others (including one summary offence) were State offences.

2 On 11 September this year, for reasons to be published, the Court —

(i) granted the appellant leave to appeal against his conviction on the Commonwealth charge, allowed the appeal and quashed the conviction;

(ii) granted the appellant leave to appeal against sentences imposed on charges 14, 15, 16, 17, 19, 20, 21 and 25 on the indictment, but dismissed the appeal.

3 These are our reasons.

The conviction application

4 The Commonwealth offence (charge 2) was that the appellant made counterfeit money contrary to s 6 of the Crimes (Currency) Act 1981 (Cth). The ground of appeal was that the indictment had been signed by a Victorian prosecutor who was not at any relevant time delegated the powers of the Commonwealth Director of Public Prosecutions pursuant to s 31 of the Director of Public Prosecutions Act 1983 (Cth). In consequence, it was contended, the indictment was not validly made, and in those circumstances the conviction could not be maintained.[1]

5 Counsel for the Crown has properly conceded that this ground was made out.

6 The application for leave to appeal against conviction on charge 2 was accordingly granted, the appeal allowed, and the conviction quashed.

7 There could not be a new trial unless and until an indictment signed by a delegated prosecutor was filed. Counsel agreed, notwithstanding s 277(1)(a) and (b) of the Criminal Procedure Act 2009, that neither of the orders there contemplated was in point. Counsel for the appellant noted that, notwithstanding apparent difficulty in so ordering, an order simply quashing conviction had in the past been made by this Court under the provisions of the Crimes Act 1958. In the absence of full debate, we made an order consistent with the Court’s past practice.

The sentence application

Grounds of appeal

8 Until the day before the matter was listed for hearing, the appellant relied upon a single ground in pursuit of his application for leave to appeal against sentence:

Fresh evidence is sought to be tendered of events occurring since sentencing which demonstrate the true significance of facts which were in existence at the time of sentence.

9 The fresh evidence related to the circumstance that the appellant had given evidence at the committal hearing of two co-offenders, a matter which was only in prospect when he was sentenced, and which the judge concluded she could not take into account when sentencing him. It was contended that, such evidence having been received, the appellant fell to be sentenced afresh.

10 But then notice was given of intention to seek leave to add a ground as follows:

The sentences on charges 14, 15, 16, 17, 19, 20, 21 and 25 are manifestly excessive.

Particulars

(i) Charges 14, 15, 16, 17, 20, 21 & 25 involved the theft of trucks bobcats or excavators valued at between $70,000 and $115,000.

(ii) Though charges 14, 15, 16, 17, 19, 20, 21 & 25 attracted a maximum penalty of 20 years, the gravity of those offences was not of an entirely different [sic] to the other theft offences.

(iii) In particular, charge 27 involved a value of $140,000 and a degree of criminality otherwise relatively similar to charges 14, 15, 16, 17, 19, 20, 21 & 25, yet attracted a sentence of only 20 months, whereas charges 14, 15, 16, 17, 19, 20, 21 & 25 attracted sentences of between 2 years and 2 years and 6 months.

(iv) The applicant had limited prior convictions, made admissions when interviewed, pleaded guilty, and had provided assistance to the police.

11 At the hearing —

(i) we granted the appellant leave to amend his notice of appeal to rely upon the new ground (ground 2);

(ii) appellant’s counsel abandoned all reliance upon the original ground. We were invited to, and we did, put the fresh evidence ground to one side;

(iii) contrary to his written case, counsel conceded that the quashing of the conviction on charge 2 did not re-open the sentencing discretion generally;[2] and

(iv) counsel then pursued two quite distinct arguments under cover of ground 2. The first was simply that sentences on the eight charges were manifestly excessive. The second was that the judge’s sentencing remarks revealed an error in approach to sentencing the appellant as a continuing criminal enterprise offender for continuing criminal enterprise (CCE) offences — that is, in sentencing the appellant on charges 14, 15, 16, 17, 19, 20, 21 and 25.

12 The second argument was, in truth, an allegation of specific error; but no objection was taken by counsel for the Crown to it being pursued.

Circumstances

13 The appellant committed 32 offences of dishonesty on 16 different occasions in the period between 22 November 2011 and 11 September 2012. They were burglaries, thefts, the obtaining of property by deception, handling stolen goods, and dealing with property suspected of being the proceeds of crime. In a number of instances, the thefts were associated with the burglaries. The scale of the thefts was very large. An incomplete tally of the value of property stolen exceeded $1 million. Although much of the stolen property was eventually recovered, the shortfall — again it was incomplete — was in the order of $226,000. The value of the property stolen, or otherwise the subject of the dishonesty offences, was so great because items which were stolen included trucks, excavators, bobcats, business takings and a valuable coin collection. On eight charges, because of the value of items stolen, the appellant was sentenced as a continuing criminal enterprise offender.[3] Thus, the maximum penalty for those thefts was 20 years’, rather than ten years’, imprisonment.

14 The sentencing judge detailed the offending in her comprehensive sentencing remarks. Having regard to the ground eventually pursued, it is necessary to set out the relevant portion of her Honour’s remarks.[4] We append, in respect of each offence, the sentence which the judge imposed, including any order for cumulation.

Charges 1 and 28 — theft of Polaris quad bike and obtaining property by deception — sale of the bike

7. On an occasion between 22 November 2011 and the following day, your brother, James, and an associate ‘Chris’ attended a property in Macedon where you stole a Polaris 500 cc quad bike. You took the bike after you gave an associate ‘Chris’ a lift to the property for the purposes of him stealing some saddles. Whilst ‘Chris’ was stealing three saddles, you saw the quad bike and pushed it onto the trailer which you happened to have with you. At the time you were driving your mother’s black Mazda CX7 with a trailer attached to it.
8. Some nine months later, on 2 August 2012, you sold the bike for $3,200 cash to the father of an employee at a reduced price of $2,400 so as to make allowance for $800 as part payment of wages owed to your employee.
9. The quad bike was valued at approximately $12,000 and was ultimately recovered and returned to the owner. A David Cunningham who bought the bike from you said that he did not think the bike was stolen.
10. When interviewed by police as to your reason for stealing this, you said you had no reason.

Sentence: Charge 1 — 6 months’ imprisonment; Charge 28 — 6 months’ imprisonment (1 month cumulated).

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Charges 3 and 4 — burglary and theft — Van Cruiser Caravans

13. On 23 January 2012, you entered the premises of Van Cruiser Caravans in Carrum Downs and stole four camping fridges, four camping barbecues and one cash register, being property belonging to Van Cruiser Caravans. The locks on the front doors of the factory were broken and appeared to have been jemmied open.
14. Your Ford utility was identified on CCTV footage leaving the premises on two occasions with items in the back. The total value of items stolen was $5,000.

Sentence: Charge 3 — 5 months’ imprisonment; Charge 4 — 5 months’ imprisonment (1 month cumulated).

Charges 5 and 6 — burglary and theft — Diamond Blinds

15. On that same day, you entered a shipping container which was stored at the back of Diamond Blinds, a factory in Carrum Downs. You stole 300 aluminium Venetian blinds with an estimated value of $30,000. These were recovered during execution of a search warrant. When interviewed by police, you made admissions to theft of these and said that you saw the container when driving around during the day. You returned at night and discovered the blinds which you took in your ute to your stepfather’s factory. You said that they sat there for ages and you did not get anywhere with them. You gave them to a friend to get rid of them and you said that he ‘got done’ with them.
16. When interviewed by police, you admitted to stealing a trailer from Portsea. You said you needed a new trailer as your own had been stolen. An associate, Ben Carter, who used to live in Portsea, knew about the trailer and between 28 and 29 February 2012, at about 11.00 pm, you and Carter attended an address in Portsea where Carter showed you the ‘flat bed tandem trailer’ which was on the roadway. Carter backed his vehicle to the trailer and you attached it. Then you both drove away to a friend’s factory in Seaford. You kept this and used it on a daily basis for your own personal use.
17. Subsequently, you sold the trailer along with a stolen mower to a Michael Crawford. You received $3,000 for the trailer and mower. The trailer was valued at about $2,000 and has not been recovered.
18. Subsequently, police found the registration plate from the stolen trailer in a vehicle which you had used to decamp from an address in Dandenong South on 5 June 2012. This gives rise to Charge 7.

Sentence: Charge 5 — 12 months’ imprisonment; Charge 6 — 12 months’ imprisonment (2 months cumulated); Charge 7 — 3 months’ imprisonment.

Charges 8 and 9 — burglary and theft — Henley Properties

19. Between 20 April 2012 and 23 April 2012, you attended an address in Cranbourne West and stole a printer, a number of building tools, as well as various bathroom fittings and furniture as well as door furniture, all of which belonged to Henley Properties. You told police that you and co-offender, Ben Carter, attended the premises which he had told you about. He jemmied the lock open and loaded the van. You kept some of the items including the vanity unit for yourself. Some of these items were recovered during execution of a search warrant.

Sentence: Charge 8 — 5 months’ imprisonment; Charge 9 — 5 months’ imprisonment.

Charge 10 — theft of bobcat

20. Between 3 May 2012 and the following day, you attended a construction site in Dandenong South with three co-offenders, being James Stuart, Ben Carter and a person you knew as ‘Dean’. With their help, you stole a 2010 model bobcat. In a record of interview with police you said that Carter and Dean kept watch and were in another vehicle while James Stuart and you went in. You reversed a ute and trailer in, then loaded up. You told police that Stuart had cut the padlock and chain with bolt cutters then hotwired the bobcat. You loaded this machine on a tandem trailer which was taken from where the bobcat was. You said that you received $1,500 as your share, although later in the interview you said that you received about $1,000 and that the bobcat was sold for $10,000. You said that you stole the bobcat as you just needed the money.
21. The bobcat was valued at approximately $42,000 and has not been recovered by police.

Sentence: 16 months’ imprisonment (2 months cumulated).

Charges 11, 12 and 13 — thefts from REDS Concreting

22. Before being interviewed, you were shown footage of the theft of the items being stolen, being a truck, aluminium ramps and a bobcat. You told police that co-offender, James Stuart, said he needed a truck and bobcat and you told him where there were a lot of trucks.
23. Between 13 May and 15 May 2012, you drove your Ford ute with Stuart to a holding yard for REDS Concreting.
24. You entered through the factory next door, as you knew there was no fence allowing you to walk straight through into the holding yard. Another co-offender, Gissing, also attended, keeping watch from his own car.
25. You smashed a window of a Hino tray truck and tried to hotwire this but failed. Subsequently you returned with another ignition and stole the truck. Your co-offender, Stuart, then broke into a second truck by smashing the back window. While he was doing this, you took two aluminium ramps from inside a trailer. You drove away in your ute while Stuart drove away in the truck that he had just broken into. Later, police found the chain securing the double cyclone mesh gates had been cut. Although you stopped around the corner while Stuart emptied rubbish from the truck he had just stolen, you quickly drove away after being spotted by a security guard from a church nearby. You picked up the aluminium ramps off the road and loaded these before leaving. These were used for stealing a bobcat in a subsequent theft.
26. Shortly after this, you met with Stuart and Gissing at your house. They took the ramps from the back of your ute and asked you if you were coming along to steal a bobcat. You said ‘No’; you knew that they were going to steal a bobcat from Echuca but refused to be involved because you said they were idiots during the thefts in which they had all just been involved. When the interviewing police officer asked you if you regarded their behaviour as ‘unprofessional’, you agreed with this.
27. The aluminium ramps which you stole are valued at $1,100 and were never recovered.
28. The owner of the ramps has had to incur the cost of replacing them.
29. The Mitsubishi truck which you stole is valued at $15,000 and had sustained about $2,500 damage including a smashed back window and broken steering lock. The truck was found by a Christopher McGrath who was searching for his stolen vehicles which are the subject of Charges 17 to 19 on the indictment. Police were notified and this truck was recovered. Dog chains from the truck were found at your factory on 11 September 2012 and returned to the owner. You admitted that the chains and ratchets came from the truck stolen on this occasion.
30. The first truck which you had tried to steal and returned to later with another ignition is the subject of Charges 20 and 21.
31. When interviewed by police in respect of Charges 11, 12 and 13, you said ‘There was money to be made, and I’m trying to support a family and a drug habit.’ You said that your reason for stealing the ramps was to help a friend ‘in they’re needing money’.

Sentence: Charge 11 — 10 months’ imprisonment; Charge 12 — 1 month imprisonment.

Charge 13 — theft of bobcat

32. You have pleaded guilty to this charge but the Crown concedes that you were not present when the theft was committed. They said that you were guilty on the basis of aiding and abetting co-offenders in the theft of the bobcat. This was not the theft of a bobcat in Echuca in which you were unwilling to become involved. By your plea, you admitted that you were party to theft of a bobcat which was taken by Stuart and Gissing on 15 May 2012 from a construction site in Carrum Downs. They loaded the bobcat onto a stolen truck and the bobcat was never found. The owner of this item was paid $25,820 by his insurance company.

Sentence: 11 months’ imprisonment (2 months cumulated).

Charges 14, 15 and 16 — thefts of truck and excavator

33. You and Gissing had an associate, Alex Dimopoulos, who expressed interest in buying a stolen truck and bobcat.
34. Between 28 May 2012 and 29 May 2012, you and Gissing drove around in your ute looking for machinery to steal. You found a Mitsubishi tray truck with a Kubota excavator on the back at the Frankston City motor cycle track in Seaford, where the owner of these items was contracted to work at the time.
35. You and Gissing jumped the fence in order to enter the motor cycle club and used generic keys to gain access to the truck and excavator. You started both vehicles, which had been locked and no keys had been left in or on them. You loaded the excavator onto the back of the truck which Gissing was driving. You and Gissing cut the padlock and chain on the front gates and Gissing drove the truck with the excavator whilst you drove away in your ute. You both drove about half a kilometre down the road to a Peninsular Link holding yard where you found a Caterpillar bran [sic] bobcat stored behind temporary fencing. You lifted the fencing and Gissing reversed the truck up and put the ramps down while you loaded this bobcat onto the back the truck.
36. This bobcat was fitted with a GPS tracking device which then gave information of the route that you took. The GPS tracking system correlated with the location of your mobile phone which led investigators to Dimopoulos’s address in East Bentleigh. This is where you took the bobcat and stored it in the garage. You, Gissing and Dimopoulos then became concerned that the bobcat may have a tracker and so you and Gissing drove the truck, excavator and bobcat around the corner. You found the GPS tracker underneath the seat and removed it. You told police that you thought you received $4,000 each for your efforts.
37. The owner of the excavator and truck described them as being in excellent condition. The owner had paid $74,000 for the truck and $94,000 for the excavator. These were recovered by the police and returned to the owner. However, the interior of the excavator and its electronics were so badly damaged that these had to be replaced at a cost of $25,000. Damage to the truck was estimated at $12,000.
38. The owner of the items said that the theft of the equipment had created substantial financial problems for his business, as repairs to the equipment took two months. As a result, his business lost approximately $60,000 to $70,000 worth of work.
39. The Caterpillar brand bobcat was valued at $84,049 and belonged to a rental store. It had not been recovered by police and the owner received a payout from the insurance company of $41,621.22; that is half its valuation.

Sentence (as CCE offender, for CCE offences — see Sentencing Act 1991 s 6H(1) and sch 1A, para (1)(a)):

Charge 14 — 2 years and 3 months’ imprisonment (3 months cumulated); Charge 15 — 3 years’ imprisonment (base sentence); Charge 16 — 2 years’ imprisonment (3 months cumulated).

Charges 17, 18 and 19 — thefts of truck, trailer, bobcat and excavator — CJB Excavations

40. You had a company which was involved in excavations and concrete. You were hired to concrete and excavate a property in Dandenong South. You mentioned to Gissing that you needed a tip truck for the job. He told you where one could be found and between 4 and 5 June 2012, he drove you to a holding yard for ‘Rockscape’ landscape supplies in Wantirna. Here you found a Mitsubishi tray truck, a bobcat, and a trailer hooked to the truck which held an excavator.
41. You admitted to police in your interview that you stole the truck, bobcat and excavator and made a detailed statement to police on 26 September 2012 in respect of these thefts. You said to police that you thought you used a screwdriver to open the front driver’s door and then hot-wired the truck by taking the back of the ignition barrel off and putting in a screwdriver and turning it. Gissing cut the padlock off the gate using bolt cutters and you drove to your work site with Gissing. On the way to your work site, you disconnected the trailer with the excavator as you did not need this. You left these items near Fosters Road. You unloaded the bobcat at your work site then drove the truck to where you had left the excavator and trailer.
42. Later that day, you and your younger brother, James, were confronted at your work site by the owner of the bobcat. You told police that there was an altercation but that you drove away in the ute.
43. The owner of the truck, trailer, bobcat and excavator was a self-employed plant operator, Christopher Bevan. He was notified of the theft at 4.30 am. The truck and excavator had GPS trackers attached to them, which enabled the owner and police to inspect machinery at the location to which they tracked it. The truck, trailer and excavator were found but the bobcat was missing.
44. Mr Bevan then attended a café and whilst there he happened to see his bobcat being used on your work site. He called ‘000’ then approached you and another male and recorded the incident on his mobile phone. The footage depicted you and your brother, the ute and its registration. A friend of Mr Bevan’s drove their car from the café to the exit of the site, blocking you and another male. However, you managed to leave the site. Distinctive signage for CJB Excavations which had been on the truck had been discarded on the site and was later identified by the owner. The owners of the premises at your work site subsequently advised your name and phone number. You had quoted $39,403 for the job at this work site and had already been paid a deposit of $7,000. The truck and trailer were worth $90,000 and $25,000 respectively. The bobcat was worth $45,000 and the excavator was valued at $80,000.
45. When interviewed by police about this offending, you said that you wanted to try to make some extra money for the business and pay ‘the boys.’ You said that you tried to do it ‘the cheap way’ and wanted to get a tip truck to remove the old asphalt. You said that you and Gissing ended up finding a truck trailer and ‘that’s where we went a bit over the top.’ You said that you were using the machines and did not intend to sell them and that you were just trying to ‘get one step ahead’, that you were trying to get ahead in life.

Sentence (as CCE offender on Charges 17 and 19):

Charge 17 — 2 years’ imprisonment (3 months cumulated); Charge 18 — 13 months’ imprisonment (1 month cumulated); Charge 19 — 28 months’ imprisonment (3 months cumulated).

Charges 20 and 21 — theft of tray truck and excavator — REDS Concreting

46. Between 15 and 16 June 2012, you and Gissing went to a holding yard for REDS Concreting in Seaford. You again drove your mother’s car. You cut the lock on the fence and found a white Hino tray truck which was loaded with a Komatsu 8 tonne excavator. You started the truck and drove this with the excavator out of the property to Jells Park. You drove the items here because Dimopoulos did not want the items at his address.
47. The following morning, you drove the truck and excavator to Dimopoulos’s premises. You unloaded the excavator and removed stickers identifying the truck as belonging to REDS Concreting, as well as stickers identifying the bobcat.
48. On 19 June 2012, a neighbour of Dimopoulos video recorded the movements of this machinery and two males outside the property, on her iPhone. She provided this information to the police.
49. Shortly afterwards, police attended the vicinity and observed the truck and two males in high visibility orange vests. The males ran out of the driveway towards a car which was identified as your mother’s car. Police tried to follow the car but lost sight of it.
50. The stolen truck and excavator are valued at $195,000 and were located and returned to the owners.
51. Police showed you photos taken from footage of these thefts and you said that you and Gissing stole the truck for Dimopoulos who had sold an excavator. You said that you attended the yard because you had been there in the past and knew that machinery was there. You said that Dimopoulos organised the sale of the machinery and you were not involved in this. You expected to received $8,000 to $10,000 from the theft. You said you were desperate for cash. Dimopoulos was contacted by police and denied knowledge of the truck.

Sentence (as CCE offender):

Charge 20 — 30 months’ imprisonment (4 months cumulated); Charge 21 — 28 months’ imprisonment.

Charges 22 and 23 — burglary and theft — Mambo Restaurant

52. Between 23 and 24 June 2012, you stole two safes and money from Mambo Steak and Seafood Restaurant in Frankston. The safes had been ‘dyna-bolted’ to the concrete floor within the office. The small black key lock safe had also been stolen. The key for the office door, which was hidden in the restaurant in a tea box in the bar, was also missing. The larger safe contained a total of $26,000 to $30,000 cash being one day’s takings, a Bendigo Bank cheque book and business tax file declarations. The smaller safe contained $500 to $2,000 cash in plastic money bags and cardboard wrapped coins.
53. When interviewed by police on 11 September 2012, you admitted that you got a ‘tip off’ that a safe was there and that there was a good amount of cash there. You said that you expected to get close to 30 grand. You said that you took a trolley and a jemmy bar and cut the safe open with an angle grinder. You said that you and ‘Aaron’ received $5,000 to $6,000 which was distributed between you. This does not seem to tally with the amount of money said to be stolen but I have put that to one side.
54. You said the money was probably spent on drugs and that you smoked drugs in a glass pipe three or four times a day. You said you had half a gram a day which cost you $250 at times. Your counsel said that you sometimes smoke one gram of ice a day, which costs you $500 a time. You said to the police that you had the drug GBH to lift your mood and that on occasion, you had swapped tools for drugs. I will refer to this aspect of your plea later on in the sentencing remarks.

Sentence: Charge 22 — 12 months’ imprisonment (1 month cumulated); Charge 23 — 12 months’ imprisonment.

Charges 24 and 25 — theft of mesh, tilt tray truck

55. On 6 July 2012, you and Benjamin Carter went to Bay City Rentals in Cheltenham. Carter drove his Mercedes van. You gained entry to the yard by cutting the lock on the gate. You used a screwdriver to pop open the lock of an Isuzu tray truck. You then started the truck by pulling the back off the ignition and turning it. You then drove the truck away.
56. You had seen 50 sheets of mesh at a building site in Carrum Downs earlier that day when driving past. You used a winch to load the mesh onto the truck, then drove to a work site in Dandenong South where your company was contracted to do earthworks. You unloaded the mesh then drove around the corner where you parked the truck.
57. The stolen truck was valued at $70,000. It was recovered by police and returned to the owner. The sign writing on the truck had been painted out in white and chains on the tow winch had been broken. Repairs to the vehicle cost $3,000.
58. The stolen mesh was valued at $6,000 and the owner has had to incur the cost of replacing this.
59. On 11 September 2012, police found a black HRD case containing multi tools which were taken from the stolen truck by you. These were seized and returned to the owner.
60. When interviewed by police, you said that you spotted the truck and returned later that night to get it. You said you needed mesh and that you wanted to try and do the job as cheap as you could and to try and make as much as you could so that you did not have to ‘do the heavy shit anymore’.

Sentence (as CCE offender on Charge 25):

Charge 24 — 6 months’ imprisonment (1 month cumulated); Charge 25 — 2 years and 3 months’ imprisonment (3 months’ cumulated).

Charges 26 and 27 — burglary and theft from Graham Gold & Coins

61. On or about 29 July 2012, you broke into ‘Graham Gold & Coins Shop’ in Frankston and stole collectable coins with an estimated value of $120,000 to $140,000. The front roller door had been forced or jemmied open and the heavy glass/wooden sliding door had also been jemmied and damaged. The number of items including collectable Australian and foreign coins, notes and war medals was in the hundreds. The sleeves which had handwritten details identifying each of these were also stolen.
62. During your first interview with police on 11 September 2012, you said that you were driving through Frankston with a friend ‘Mick’, and had heard of this job a while before. You and he decided to do the job and said that you needed the money and were really struggling at the time. You said to police that it was ‘the biggest waste of time’, ‘because you had made nothing out of it’. You said you divided the spoils between you and you had looked up the items in books and found that they were worth nothing. You said that you were offered nothing, so you basically gave them away to a friend. Again, you said that you needed the money — you said that you did not have a cent in your pocket and were trying to get onto Centrelink, that your business went down and that you were struggling for a dollar.

Sentence: Charge 26 — 20 months’ imprisonment; Charge 27 — 20 months’ imprisonment (3 months cumulated).

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Charges 29 and 30 — burglary and theft of lawn mower — Southern Obedience dog club

63. Between 15 and 17 August 2012, you and co-offender Gissing drove to an address where you had previously seen a lawnmower. You were towing a trailer which was owned by you.
64. You broke into a shipping container and reversed a ‘John Deere’ lawnmower with a bucket attachment onto the trailer. The mower had a key in the ignition. You then took the mower to a container in Dandenong which you knew had been there for a number of years. You stored the mower in the container and secured it using your own padlock and key. You later sold the mower for $2,400 cash — the sale taking place at the container. You and Gissing went halves in the proceeds. The mower was in fact valued at $24,000 and it was recovered by police and returned to the owner. You told police that your reason for stealing the mower was that you needed the money.

Sentence: Charge 29 — 6 months’ imprisonment; Charge 30 — 6 months’ imprisonment.

Charge 31 — handling stolen goods — truck rims and tyres

65. On 8 September 2012 at about 1.30 pm, you received truck tyres and truck rims which you knew to be stolen. These were dropped off to you at your stepfather’s factory to see if you could sell them. You estimated that there were about 30 tyres and four rims, but told police you did not make any money. You expected to receive a commission of 50 per cent if you had sold them. These items were valued at about $3,000. They were found and seized by police on 11 September 2012 and returned to the owner.

Sentence: 2 months’ imprisonment.

Charge 32 — handling stolen goods — various items

66. On 11 September 2012 when police executed a search warrant at your stepfather’s factory, they found and seized 354 items which were either identified as being stolen or suspected as being proceeds of crime.
67. You admitted to police that a number of tools in the factory had been stolen including the following:
68. Generators, power tools, drills, augers, tripods, wire cutters, a steel cutter, circular saws, pumps, grinders, levels, zip ties, jack hammer, CCTV recorder, and a pipe bender. Numerous other tools were located which are set out in paragraph 115 of the Prosecution Opening, which I refer to and adopt for the purposes of these sentencing remarks. You also told police you had a number of keys from various building sites. You said that some of the items which police found were stolen from sites where you had worked or which you had passed by. These are detailed at paragraph 117 of the prosecution opening which I refer to and adopt in my sentencing remarks.
69. A number of items were engraved or marked with company names or licence identifications showing that they were stolen. You were unable to estimate the number of items in the factory which were stolen. You explained later that someone had come to the building sites and sold tools which you knew were stolen. You said ‘When you’re getting a good deal, you don’t care, you know what I mean?’ When asked if you wanted to say anything in respect of the handling charges, you said, ‘No not really, stupidity.’

Sentence: 15 months’ imprisonment (2 months cumulated).

Summary Charge — dealing with property suspected of being proceeds of crime

70. You have also admitted to the charge of dealing with property suspected of being proceeds of crime. Hundreds of items are detailed in the 4 and a half page schedule attached to the charge, the subject of this summary matter. There are nearly 200 lines of items set out in the four page schedule and in a number of those lines multiple items are referred to. These are in the nature of tools, building materials, tyres, computers and other electrical goods.

Sentence: 6 months’ imprisonment (1 month cumulated).

Submissions

15 For the purposes of both the simple manifest excess submission and the submission that the judge’s sentencing remarks were infected by specific error, appellant’s counsel relied upon the same factual analysis. Essentially, as will be seen, it involved the making of comparison between sentences which the judge imposed for CCE offences and sentences which her Honour imposed for some only of the non-CCE offences. The comparisons which counsel made took no account of orders which the judge made for cumulation. Those orders affected many of the CCE and non-CCE sentences to which counsel drew our attention.

16 Counsel began his factual analysis by pointing to the sentence which the judge imposed on charge 27. He noted that it was for theft of coins valued at $140,000, that the coins had not been recovered, and that the victim had suffered much personal and business hardship. He compared the sentence imposed for this theft with the sentence for CCE offences imposed by the judge on charges 20 and 21. The value of the equipment stolen had been $195,000, but the equipment had been located and returned to its owners.

17 Counsel next drew attention to the sentences imposed on charges 17, 18 and 19. Charge 17 involved the theft of a truck valued at $90,000 and a trailer valued at $25,000. Charge 18 related to the theft of a bobcat worth $45,000. Charge 19 related to the theft of an excavator valued at $80,000. All that equipment was stolen at the one time. All of it was recovered. The appellant was sentenced on charges 17 and 19 as a CCE offender; but not so with respect to charge 18. Counsel submitted that the sentence imposed on charge 18 stood in stark and unexplained contrast with the sentences imposed on charges 17 and 19. He contended that each of the latter was impermissibly great.

18 Counsel also drew attention to the sentences imposed on charge 24 — theft of mesh, value $6,000; and on charge 25 — theft of truck, value $70,000. The mesh had been lost, but the truck had been recovered. Yet, counsel observed, sentence on charge 24 had been six months’ imprisonment, whilst the sentence on charge 25, for a CCE offence, had been 27 months’ imprisonment.

19 Finally, counsel drew attention to the sentences imposed on charges 14, 15 and 16. The stolen truck which was the subject of charge 14 was valued at $74,000. It had been recovered, but there was $12,000 damage. The excavator the subject of charge 15 had been purchased for $94,000. It had also been recovered, but there was damage of $25,000. The bobcat, valued at $84,049, had been rented. It had not been recovered. Its owner had recouped about 50 per cent of its value from an insurer. Counsel submitted that the sentences imposed on charges 14 and 15 for CCE offences were very heavy, particularly as the items had been recovered. He also compared the sentence imposed on charge 16 — two years’ imprisonment — with the sentences which the judge imposed for other thefts of bobcats: on charge 10, 16 months’ imprisonment; on charge 13, 11 months’ imprisonment; and on charge 18, 13 months’ imprisonment. He observed that the bobcat which was the subject of charge 10 had not been recovered. Presumably, the bobcat the subject of charge 13 had not been recovered either, because the owner had been paid out by an insurer. The bobcat the subject of charge 18 (one of three items of equipment stolen at the time) had not been recovered and an insurance payout had been made. Counsel submitted that the other sentences for thefts of bobcats showed that the sentence on charge 16 had been impermissibly great; and he submitted also that the reason for the heavy sentence on charge 16, where the appellant was sentenced as a CCE offender, had not been explained as was required.

20 With respect to alleged specific error, counsel submitted that when a judge imposes sentences for offences, some of which are CCE offences and others of which are not, the judge must explain why and to what extent the facts of the CCE offences have led to the imposition of greater sentence on those charges (assuming that is what has happened) than on the non-CCE charges. He relied upon observations by Vincent JA in R v Arundell,[5] referred to by Redlich JA in R v Grossi.[6]

21 Counsel for the Crown submitted that it was inherently unlikely that the judge had automatically increased the sentences for the CCE offences only because the maximum penalty for those offences was doubled. That had not been the gist of submissions made to the judge on the plea. Rather, the prosecutor had submitted in writing that:

The primary consequence of sentencing an offender as a continuing criminal enterprise offender is that the applicant may become liable to an increased maximum penalty^[7]

in respect of a CCE offence; and that:

However, the maximum penalty remains only one of a number of considerations in determining the appropriate sentence and the judge retains a discretion as to whether a greater sentence should be imposed where the maximum penalty on a charge is increased because it is a continuing criminal

enterprise offence: [Grossi [2008] VSCA 51; (2008) 23 VR 500] (cited in Judicial College of Victoria Commentary 2013).

22 So also, counsel for the Crown submitted, appellant’s counsel below, having been asked by the judge whether she had to have regard to the doubled maximum penalty, agreed that this was so, and submitted that it was ‘a factor’ but that it did not ‘override all of the other factors’ which the judge had to take into account.

23 Counsel for the Crown further submitted that the correct approach described by counsel was demonstrably the approach which the judge took. Her Honour had said this in her sentencing remarks:

3. However, in relation to charges 14 to 17 inclusive as well as charges 19 to 21 and charge 25, you are to be sentenced as a continuing criminal enterprise offender and your status as such will be entered in the records of this Court. This means that in relation to the charges which I have just mentioned, you will be sentenced on the basis that the maximum penalty is twice that which normally applies, that is, the maximum sentence applicable for those charges is 20 years imprisonment. Of course, the maximum penalty is only one of the matters to which I must have regard in sentencing you. However, the maximum penalties reflect the seriousness with which Parliament regards these types of offences, especially continuing criminal enterprise offences. In effect, in relation to those particular charges where you stole items, which, on their own, were worth more than $50,000, and having done so on more than three occasions, you are regarded as a significant threat to the community. You are seen as having run a continuing criminal enterprise and the maximum penalty doubles in a bid to protect the community from such serious offending.

24 Counsel then submitted that the judge had carefully analysed the circumstances in which the various offences had been committed. The individual sentences, he submitted, were explicable. The sentence on charge 15 had been the heaviest sentence imposed, not because the items stolen had been the most valuable, but because of the impact which the theft had on the victim’s business. Further, when sentencing the appellant for CCE offences, the judge had rightly referred to the threat which the appellant posed to the community because of his ‘prolific and unconscionable offending’, often with a degree of planning, his offending causing ‘tremendous hardship’ to others.[8] Further again, counsel submitted, the orders for cumulation both with respect to CCE and non-CCE offences had been consistently modest. The judge, evidently, had given due regard to totality.

Arundell and Grossi

25 In Arundell,[9] the appellant committed a number of offences of obtaining property by deception. Some of them were CCE offences, others not. The judge imposed sentences of 48 months’ imprisonment for all the CCE offences and sentences of 36 months’ imprisonment for all the non-CCE offences

26 The issues of principal importance in Arundell were, first, whether two offences, having been committed before pt 2B of the Act came into operation on 1 July 1998, could be taken into account as ‘qualifying’ offences; and second, whether an offender fell to be sentenced as a CCE offender for a CCE offence upon or after the commission of a third qualifying offence. The way in which Vincent JA resolved those questions is not of present relevance.

27 His Honour, however, made two observations of present relevance. First, he stated that:

Parliament has, through the enactment of Part 2B, expressed an intention to deter those who demonstrate preparedness to engage in repeated predatory behaviour, affecting through the commission of offences of the kind presently under consideration, the economic welfare of individual victims and the general community.^[10]

28 Second, and critically for the appellant’s argument, his Honour said this:

The more difficult question which arises in this matter is whether the exercise of the sentencing discretion by his Honour miscarried, by what appears to have been, the effecting of an automatic increase in the penalties imposed on those counts as a consequence. As I have earlier indicated, there was no discussion of the manner in which the provisions of Part 2B should apply in the particular circumstance. The sentencing judge did not address the matter in his remarks and the sole basis of distinction between the penalties imposed on the various counts appears to have been whether the amount involved fell on one side or the other of the figure of $50,000. In the absence of any reasons to explain the difference in the penalties imposed, I consider that serious doubt must exist as to whether proper regard was had in the circumstances of the particular matter before the Court in the determination of what, if any, differential was required between the sentences handed down for the offences subject to an increased maximum penalty and those which were not.^[11]

29 In that case, in respect of offences committed in an identical way, uniform penalties had been imposed for CCE offences and lesser uniform penalties for non-CCE offences. Absent any other explanation by the judge, it was an irresistible inference that the penalties for the CCE offences had been automatically increased because they were of that character and because, being of that character, the maximum penalty was doubled.

30 In Grossi,[12] the appellant was charged with many thefts. As the trusted employee of the victim, she had unlawfully drawn cheques and had, in one way or another, credited the amounts of the cheques into bank accounts which she held. She was charged with a number of rolled up counts and also on counts of thefts of individual amounts. In the case of a number of the latter thefts, the sentencing judge concluded that the applicant fell to be sentenced as a CCE offender. In respect of those counts, he imposed an aggregate sentence. In respect of the non-CCE offences, he imposed an aggregate, but lesser, sentence.

31 A number of issues arose for consideration on the appeal, which are beside the point for present purposes.[13] It is, however, necessary to refer to what was said by Redlich JA as follows:

The learned sentencing judge grouped together counts 9 to 17 and count 19 as the appellant was a continuing criminal enterprise (‘CCE’) offender and these counts were CCE offences as defined in s 6H of the Act. Under cover of ground 6 it was submitted on the appellant’s behalf that his Honour had fallen into error in fixing an aggregate sentence of five years on those counts which were continuing criminal enterprise counts as opposed to the aggregate sentence of three years imposed on the ‘rolled up counts’. Relying upon R v Arundell^[14] counsel for the appellant submitted that it was impermissible to automatically increase the penalty simply on account of the fact that an offender was guilty of a continuing criminal enterprise offence. It was submitted that his Honour had fallen into error in this way in the present case, no reason having been given by his Honour for the difference of two years between the two aggregate sentences. Counsel for the appellant drew attention to the fact that a number of the individual offences making up the aggregate sentence which consisted of rolled up counts, involved much larger sums of money than the continuing criminal enterprise offences comprising the second aggregate sentence. In this regard the circumstances appear to be indistinguishable from those considered in Arundell, as the difference in penalties there also appeared to rest solely upon the fact that the offences were continuing criminal enterprise counts.

The maximum penalty prescribed by Parliament for an offence provides authoritative guidance as to its relative seriousness and is prescribed for the worst class of the offence in question.^[15] The increase will be relevant whenever the increase shows that Parliament regarded the previous penalties as inadequate. Even in cases where the new maximum is only of general assistance, it becomes the ‘yardstick’ which must be balanced with all other relevant factors.^[16] But it does not necessarily follow that offences should attract an increased sentence because the maximum penalty has been increased. Thus, in Arundell, Vincent JA, with whom the Chief Justice and Cummins AJA agreed, regarded the absence of any reasons to explain the difference in the penalties imposed as raising a serious doubt as to whether proper regard had been given to what differential, if any, was required between those offences which were subject to an increased maximum penalty and those which were not. But that is not to say that the amount involved in a continuing criminal enterprise count will not in a particular case provide a sufficient justification, without more, for the imposition of an increased penalty. Here it was not disputed by the respondent that this, and the other errors to which I have referred required the re-opening of the sentencing discretion. We would do so if satisfied, as s 568(4) of the Crimes Act 1958 requires, that a different sentence should have been imposed.^[17]

32 Both Arundell and Grossi were cases in which a judge imposed very different, and in substance uniformly different,[18] sentences for CCE and non-CCE offences which had been committed by the offender in identical circumstances. In each instance the judge said nothing to explain ‘what, if any, differential was required’ between the sentences imposed for the CCE and non-CCE offences. It was to be inferred that the judge had automatically increased the sentences for the CCE offences only because the maximum penalty was greater.

33 In our opinion, what was said in Arundell and Grossi, in those distinctive circumstances, cannot be understood to mean, in a case where —

(i) discrete and different sentences are imposed for many offences;

(ii) the different circumstances of every offence are described;

(iii) the impact of particular offending upon the victim is outlined;

(iv) circumstances in mitigation are fully described; and

(v) principles relevant to sentencing the offender, including the maximum penalty applicable to the various offences, are identified;

that it is then necessary for the judge to explain why the sentence for each CCE offence differs from the sentence imposed in respect of each non-CCE offence. The judge’s reasons for imposing a particular sentence in the case of a particular offence will be explained by his or her synthesis of the matters to which we have just referred. To conclude that more should be required of a judge would invite, as occurred in submissions in this case, argument of a structural kind which this Court has consistently discouraged.[19]

34 So approached, the judge’s sentencing remarks in the present case disclosed that her Honour considered the circumstances of the particular offending to which each charge related, the impact of that offending upon the victim, and circumstances of mitigation. Her remarks also show that her Honour was alive to the purpose of the CCE provisions of the Act, and how they operated with particular force in the case of CCE offences committed by this prolific offender who apparently gave no consideration to the effect of his offending upon his victims. In that connection, the fact that there was a double penalty for CCE offences was a relevant sentencing consideration.

35 Criticism made by appellant’s counsel of particular sentences which the judge imposed for CCE and non-CCE offences not only involved argument of a structural kind, it also tended to proceed from the position that some sentences for non-CCE offences were ‘correct’ or at the high end, for which reason sentences imposed for CCE offences were inexplicably and impermissibly severe. But that reasoning was flawed, because it began with an assumption which could not be made. The assumption was equally available that particular sentences for non-CCE offences were lenient. Moreover, the argument which fastened upon the sentence on charge 27 — see [16] above — had its own problems. There is really no doubt that the appellant should have been sentenced as a CCE offender on that charge; in which case, having account of its particular circumstances, a greater sentence might have been expected.

36 With respect to the argument that sentences for the CCE offences were manifestly excessive, appellant’s counsel again mainly sought to compare the sentences imposed on those charges and sentences imposed for some non-CCE offences. Again, the comparison was not useful, because it assumed that the sentences for the non-CCE offences were either ‘correct’ or at the high end. No such assumption could be made. If it could be assumed that those sentences were ‘within range’ — this doubtful assumption deriving from, or being supported by, the fact that the Crown did not appeal them as being manifestly inadequate — it does not follow that each of them was not very lenient.

37 Her Honour, understandably, described the appellant’s offending as ‘most serious’ and being such as to require denunciation, and to make relevant both general and specific deterrence. Those conclusions particularly resonated in the case of the CCE offences. The appellant presented a particular danger to the community, against which it had to be protected as best sentence could do.

38 We should highlight several matters bearing upon sentence for the CCE offences.

39 First, the appellant was sentenced in the Magistrates’ Court for a number of offences on 7 August 2012, but soon thereafter committed some of the offences for which he stood to be punished. That was an aggravating circumstance in respect of those offences. It also emphasised the need to protect the community from the appellant — a matter particularly relevant to punishment for the CCE offences.

40 Second, having been referred to a psychologist in 2011, the appellant did not follow up in any consistent way a suggested need for treatment with respect to ‘depressive symptoms, drug use and addictive issues, as well as stress’. He committed all of the offences on the indictment after his consultations with the psychologist in May and August 2011. Further, a consultation on 10 May 2012 was followed by commission of all the CCE offending. His careless attitude to what was said to be a need for treatment bore upon his apparent disregard for his victims, and the need to protect the community from him.

41 What, then, stood in mitigation?

42 First, the appellant had no criminal history, other than the offending the subject of the Magistrates’ Court sentence in August 2012. That offending was apparently part of the spree of which the offences now under consideration were the larger part.

43 Second, the appellant had pleaded guilty at an early stage.

44 Third, the appellant was still quite young.

45 Fourth, the appellant had a fair work history.

46 Fifth, the appellant was involved in a relationship breakdown in 2010. The judge was prepared to accept that — (a) this had an effect upon his mental state; (b) in time it led to him resuming abuse of drugs — particularly ‘ice’; (c) he was a drug abuser at time of offending; and (d) his offending was in part explained by his need for money to feed his drug habit.

47 Sixth, the appellant had formed a new and continuing relationship which had some beneficial features.

48 Seventh, the judge was prepared to accept that the appellant was suffering from a depressive illness at time of sentence, which would make his life in prison comparatively harder.

49 Eighth, the judge was prepared to conclude that the appellant had prospects of rehabilitation, although she described them as ‘fair at best’.[20]

50 The judge made, in our opinion, a number of findings favourable to the appellant which another judge, faced with the same material, might well not have made. In particular, the judge accepted that at time of offending the appellant had been a substance abuser, and that this explained to a degree — although it did not justify — his offending. In that connection, her Honour understandably remarked that the appellant’s account of his abuse of ‘ice’ at the time of his offending starkly contrasted with the professional way in which he went about his then chosen occupation as a thief. That said, the judge’s findings were not challenged by the Crown.

51 Having regard to all the circumstances to which the judge referred in her sentencing remarks, a few of which we have highlighted, we concluded that all of the sentences which the judge imposed for CCE offences were readily explicable. None of them, in our view, was outside the range available in the sound exercise of the sentencing discretion. But if we had been persuaded that the sentences imposed on one or more of the CCE offences had been manifestly excessive, and if it had become necessary to sentence the appellant afresh, we are quite satisfied that the total effective sentence which we imposed upon the appellant would not have differed from the effect of the sentences imposed by the judge; and we would not have fixed a different non-parole period.

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^[1] Ravarotto v The Queen [2012] VSCA 263.

^[2] Smith v The Queen  [2012] VSCA 5 , [1] (Ashley JA), [41]–[48] (Weinberg JA).

^[3] See Sentencing Act 1991 pt 2B (‘the Act’).

^[4] DPP v Abela [2013] VCC 762 (‘Sentencing Remarks’). We have slightly amended some headings to charges/groups of charges.

^[5] [2003] VSCA 69, [28] (‘Arundell’).

^[6] [2008] VSCA 51; (2008) 23 VR 500, 512–13 [44]–[45] (‘Grossi’).

^[7] Emphasis in original.

^[8] Sentencing Remarks, [72].

^[9] [2003] VSCA 69.

^[10] Ibid [22].

^[11] Ibid [28].

^[12] [2008] VSCA 51; (2008) 23 VR 500.

^[13] Thus, it is not in point that in R v Roussety [2008] VSCA 259; (2008) 24 VR 253 a five member bench rejected, by majority, one aspect of the conclusion of the majority in Grossi pertaining to the operation of pt 2B.

^[14] [2003] VSCA 69, [26]–[27].

^[15] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; R v Sibic [2006] VSCA 296; (2006) 168 A Crim R 305.

^[16] R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 406 [51]; DPP (Vic) v Aydin [2005] VSCA 86, [10]–[12] (Callaway JA) as to the variable factors that bear upon the significance of an increased maximum.

^[17] Grossi [2008] VSCA 259; (2008) 24 VR 253, 512–13 [44]–[45], citing R v Palmieri [1998] 1 VR 486, 490 (Brooking and Hayne JJA); R v Wright [2008] VSCA 19, [46].

^[18] In Arundell, many uniform sentences (they differed only depending upon whether the offence was of a CCE or a non-CCE kind) were imposed. In Grossi, the CCE and non-CCE offences were aggregated, and different aggregate sentences were imposed.

^[19] See, eg, Lipp v The Queen [2013] VSCA 384, [13] (Redlich JA and Lasry AJA); Hoy v The Queen [2012] VSCA 49, [18]–[21] (Redlich JA, Nettle JA agreeing).

^[20] Sentencing Remarks, [120].