Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Vlach v R [2012] NSWCCA 192 Hearing dates: 29 August 2012 Decision date: 29 August 2012 Before: Macfarlan JA Price J McCallum J Decision: Leave to appeal refused. Catchwords: Criminal Law - appeal - sentencing - aggravated break enter and steal - whether extension of time to appeal should be granted - parity - whether sentence manifestly excessive - no likelihood of appeal succeeding - extension of time refused. Legislation Cited: Crimes Act 1900 s 112(1), s 112(2) s 527C(1) Crimes (Sentencing Procedure) Act 1999 s 11 Criminal Appeal Act 1912 s 10(1)(b) Drugs Misuse and Trafficking Act 1985 s 10(1), s 11(1) Cases Cited: Edwards v R [2009] NSWCCA 199 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Beattie [2000] NSWCCA 201 R v Ilbay [2000] NSWCCA 251 R v Kollas and Mitchell [2002] NSWCCA 491 Category: Principal judgment Parties: Representation: Mr Vlach (unrepresented in person) Ms H Wilson (Crown) Mr S Kavanagh (Solicitor of Public Prosecutions) File Number(s): 2009/66605 Decision under appeal Citation: R v Vlach Before: Zahra SC DCJ File Number(s): 2009/66605 Judgment 1Macfarlan JA: I ask Price J to deliver the first judgment. 2Price J: George Vlach applies for an extension of time for leave to appeal against the sentence imposed upon him in the District Court for a charge of aggravated break, enter and steal contrary to s 112(2) Crimes Act 1900. The circumstance of aggravation was that the applicant committed the offence in company with two other persons. 3Mr Vlach appears in person on this application. 4The applicant entered a plea of guilty to the charge in the Local Court and adhered to his plea in the District Court. On 13 August 2010, he was sentenced by Zahra SC DCJ (the judge) to imprisonment of 3 years 4 months to commence on 15 July 2009, with a non-parole period of 1 year 4 months. The non-parole period expired on 14 November 2010 and the applicant was released to parole. The full term of the sentence has about 2 ½ months remaining, and expires on 14 November 2012. 5The maximum penalty for an offence contrary to s 112(2) Crimes Act is imprisonment for 20 years. A standard non-parole period of 5 years imprisonment has been prescribed. 6At the applicant's request, the judge took into account when imposing sentence seven other offences on a Form 1. Other than two driving offences, those offences are; possess prohibited drug (methylamphetamine) possess prohibited drug (cannabis leaf) - both offences being under s 10(1) Drugs Misuse and Trafficking Act 1985; possess equipment to administer drug under s 11(1) Drug Misuse and Trafficking Act; goods in custody under s 527C(1) Crimes Act and break enter and steal under s 112(1) Crimes Act. It is convenient to note that an offence under s 112(1) is punishable by imprisonment for 14 years. 7On 22 September 2010, the applicant filed a notice of intention to appeal that was extended until 22 September 2011. No further extensions of time were sought or granted. A notice of application for leave to appeal was filed on 17 April 2012, together with grounds of appeal and written submissions made in support of the grounds. 8As the application was filed out of time, the court's leave is required to pursue the application. In opposing a grant of leave, the Crown submits there is neither a satisfactory explanation for the delay nor is there merit in the appeal. 9In exercising a discretion with respect to an extension of time under s 10(1)(b) Criminal Appeal Act 1912, the Court has regard to the prospects of the appeal succeeding and will usually require some satisfactory explanation of why an appeal was not brought within the time allowed, especially if the delay was considerable: R v Beattie [2000] NSWCCA 201 at [17]; Edwards v R [2009] NSWCCA 199 at [8]. 10The facts of the primary offence may be briefly stated. Shortly after midday on 21 June 2009, the victim left his apartment in a residential block in Ultimo. On leaving, he placed his security access cards in the unit letterbox. Peter Gidaro, one of the applicant's co-offenders, went to the letterbox a short time later and removed the access cards. Some minutes later, the applicant drove his car down the driveway of the secure car park in the residential block. The victim's access cards were used to activate the car park roller door and the applicant drove into the car park. The applicant, Gidaro and an unknown male walked around the car park and attempted to gain entry to parked vehicles. Access was obtained to two cars owned by the victim, being a van and a utility. Both vehicles contained a quantity of tools and other items that were stolen and placed in the applicant's vehicle. The stolen property had a value of about $1,015. CCTV surveillance cameras had captured the activity near and inside the car park. 11The applicant was arrested for the possession of prohibited drugs and for driving offences on 15 July 2009. He was questioned about the Ultimo break and enter, and made admissions to being involved. During a subsequent search of his home, police found stolen tools and clothing consistent with that recorded on film as having been worn by one of the offenders. 12The break, enter and steal charge on the Form 1 occurred on 1 February 2007 in Canada Bay. The applicant forced entry to residential premises through a garage and stole property valued at $4,720.00. 13The applicant's extensive prior criminal history commenced in 2000 when he was 24 years old. He has convictions for drug offences, offences of dishonesty, a firearms offence and a contravention of a apprehended domestic violence order. 14When the offence of break, enter and steal on the Form 1 was committed, the applicant was subject to five separate 12 month s 9 bonds for offences that included larceny and receiving stolen property and a two year s 9 bond that had been imposed for contravening an apprehended domestic violence order. 15At the time of the commission of the primary offence, the applicant was the subject of two sets of parole, the first being from a sentence imposed by the Parramatta Drug Court on 28 November 2008 for an offence of stealing that expired on 14 February 2010. The judge remarked (ROS at 8): "Before the expiry of that non-parole period [the applicant] was sentenced on the 4 March 2009 on a count of Enter Dwelling with Intent to imprisonment of seven months commencing on that day. The non-parole period of four months expired on the 3 July 2009 and the full term expired on the 3 October 2009. On the 20 April 2009, on appeal before the Parramatta District Court the non-parole period was reduced to 3 months and two weeks. He was admitted to parole on the 17 June 2009. Consequently the primary count of aggravated Break and Enter was committed some four days after release on parole for this offence. Further he was still subject to parole on the sentence handed down at the Parramatta Drug Court on the 28 November 2008. The full term of that sentence did not expire until the 14 February 2010." 16The judge observed that the commission of offences whilst on conditional liberty was a serious aggravating factor. 17The applicant's proposed grounds of appeal are as follows: 1. It is my view that there should be merit to an appeal against severity of sentence, on the issue of parity. The likely problem and area for argument will arise by virtue of the fact that your co-offender was dealt with in the local court in this matter on less serious charges. 2.That the offence was at the lowest scale for seriousness and there was no violence, the parole period was too long. 3.That the pre-sentence report recommended a bond after serving the non-parole period. 4.That poor legal advice from Legal Aid did not have this charge dropped in line with the co-accused. 5.That a guilty plea was given by myself in the Local Court with true remorse in the District Court but poor legal advice was given in terms of not having the charge dropped as the co-accused and me pleading to being the principal offender which should be challenged as I feel I played a smaller role. 18Grounds 1, 4 and 5 are essentially concerned with the question of parity with the co-offender Peter Gidaro. Gidaro was not dealt with summarily in the Local Court, but was sentenced by the judge for the primary offence on 10 March 2011. 19The sentencing proceedings for the applicant and Gidaro were heard together on 29 July 2010, but the judge deferred Gidaro's sentencing pursuant to s 11 Crimes (Sentencing Procedure) Act 1999 to enable him to enter residential treatment for his drug addiction. Gidaro was admitted into the We Help Ourselves residential treatment program on 26 August 2010 and had completed a significant amount of the program by the time the judge sentenced him in 2011. His Honour decided that Gidaro should be given every opportunity to overcome his long-term drug dependence. Gidaro was convicted on the primary offence and was placed on a s 9 good behaviour bond for 3 years which was to be supervised by the Probation and Parole Service. 20There is undoubtedly a significant difference between the applicant's sentence and the sentence imposed on Gidaro. 21A marked disparity between the sentences imposed on co-offenders of a degree or a kind which gives rise to a justifiable sense of grievance is required before appellate intervention: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified: R v Ilbay [2000] NSWCCA 251; R v Kollas and Mitchell [2002] NSWCCA 491. The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 said at [31]: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (footnotes omitted) 22Although the applicant in Ground 5 refers to having pleaded to "being the principal offender", the judge did not make such a finding. The judge did not characterise the role of either offender in his separate sentencing remarks nor did his Honour refer to the principle of parity. The facts do not disclose that either of them had a greater role than the other in the joint criminal enterprise to break into and steal from the car park. 23The applicant was 33 years old when the offence was committed whereas Gidaro was 30 years old. Both offenders had prior criminal histories and had difficulties with drug addiction. Each offender was found to be remorseful and his Honour recognised that they were entitled to a 25 per cent discount for the utilitarian value of the plea of guilty. The applicant had been diagnosed as suffering from schizophrenia and Gidaro with Attention Deficit Hyperactivity Disorder. None of these matters justify the significant difference in their sentences. 24However, all matters were not equal between these co-offenders. When the applicant was sentenced, the judge took into account the seven offences on the Form 1. The offence of break, enter and steal that was committed on 1 February 2007 was serious in its own right. It was committed whilst the applicant was subject to the good behaviour bonds referred to at [14] above. Moreover at the time of the commission of the primary offence, the applicant was on parole. As the judge observed in the passage quoted at [15] above, the primary offence was committed some four days after the applicant's release to parole and he was still subject to parole for the 28 November 2008 sentence. 25When Gidaro was sentenced, one offence of larceny of two building passes to the value of $150 was taken into account by the judge on a Form 1. Gidaro was not subject to conditional liberty at the time of the commission of either the primary offence or the Form 1 offence. The applicant's offending whilst on conditional liberty was a factor of aggravation that required weight to be given by the judge to personal deterrence and the protection of the community. 26Another matter of difference was Gidaro's successful completion of the residential treatment program which enabled the judge to be positive about Gidaro's prospects of rehabilitation, whereas he was justifiably reticent about the applicant's future prospects. 27All of these matters justify the difference in sentence and I do not think that there is any likelihood of these grounds of appeal succeeding. 28By the second proposed ground of appeal, the applicant contends that the parole period was too long. He refers to the offence being at the lowest scale of seriousness and points out there was no violence. 29It appears from discussion with the applicant that his complaint is that the total sentence is manifestly excessive. He submitted that the judge had paid inadequate regard to his use of prohibited drugs and his mental illness at the time of the offence. 30The judge in his careful sentencing remarks concluded that the primary offence fell at the bottom of the range for an offence of aggravated break, enter and steal. His Honour found that the offence was unplanned, there was no damage to the building or the vehicles from which the property was stolen and the value of property taken was relatively small. His Honour found special circumstances and backdated the sentence so that some seven months of the non-parole period was served concurrently with the balance of term of the sentence, for which parole had been revoked. 31The judge accepted that the applicant had been drug affected when the offence was committed, but noted that this was no excuse for the crime. His Honour observed that there was "little upon which to conclude that [the applicant's] judgment was affected to any significant degree" (ROS 13-14). 32The judge plainly had regard to the applicant's mental illness. He referred to the applicant's diagnosis of schizophrenia in 2005 and to his account to the Probation and Parole officer that he had not been taking his medication for at least two days prior to the offence (ROS 9-10). His Honour noted that it had not been suggested that there was "any other causal connection between the offending and his underlying mental health apart from being the reason he was using drugs upon his release from gaol" (ROS 14). 33These findings were open to his Honour. I should mention that the judge had regard to the letter that the applicant had written to him in taking into account the applicant's remorse for the offending. 34I consider that there is no likelihood of the applicant showing that the sentence was unreasonable or plainly unjust: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]. 35Ground 3 of the appeal makes reference to the pre-sentence report recommending "a bond after serving the non-parole period." The author of the report did not recommend a bond but assessed the applicant as being suitable for a medium level of intervention by the Probation and Parole Service commensurate with the assessed risk. The applicant was assessed as being unsuitable for a community service order or for imprisonment to be served by way of periodic detention. 36It is evident from his sentencing remarks that the judge paid close attention to the contents of the report. In any event, a judge is not obliged to act upon recommendations by the Probation and Parole Service. There is no merit in this proposed ground of appeal. 37I have concluded that, if an extension of time was granted, the appeal would not be likely to succeed. 38In his affidavit, the applicant explains that he had gone through Legal Aid, then a private solicitor before deciding to represent himself on this appeal. He complains of poor advice through Legal Aid and of not being happy with the delay. Whilst I have some sympathy for the applicant, he was released from custody on 14 November 2010, but the notice of application for leave was not filed until 17 April 2012. The delay in prosecuting the appeal has resulted in about 2 ½ months of the sentence he seeks leave to appeal against remaining. I am of the opinion that the explanation for the delay is not satisfactory. 39I would propose that the application for an extension of time in which to appeal be refused. 40Macfarlan JA: I agree. 41McCallum J: I also agree. 42Macfarlan JA: The order of the Court is that the application for an extension of time in which to appeal is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2012