AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 29 August 2012

Vlach v R

[2012] NSWCCA 192

Theft & property
CRIMINAL LAW APPEAL SENTENCING AGGRAVATED BREAK ENTER AND STEAL PARITY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Vlach v R [2012] NSWCCA 192
Court: Court of Criminal Appeal, NSW
Date: 29 August 2012
Judge(s): Macfarlan JA, Price J, McCallum J

Background

The applicant pleaded guilty in the District Court to aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, the aggravating circumstance being that the offence was committed in company with two others. The offence involved using stolen security access cards to enter a residential car park in Ultimo and stealing tools and other items worth approximately $1,015 from two vehicles. CCTV footage captured the participants' activity throughout.

The applicant was sentenced on 13 August 2010 to 3 years and 4 months' imprisonment, with a non-parole period of 1 year and 4 months commencing 15 July 2009. Seven additional offences, including a separate break, enter and steal and various drug-related matters, were taken into account on a Form 1 (a statutory mechanism allowing a sentencing court to consider additional offences without recording separate convictions). The applicant had been released from custody on 14 November 2010, and at the time of the application only approximately two and a half months of the sentence remained.

The application for leave to appeal was filed on 17 April 2012, well outside the prescribed period, requiring the Court of Criminal Appeal to consider whether an extension of time should be granted. The applicant appeared in person.

  • Whether a satisfactory explanation existed for the significant delay in filing the application for leave to appeal
  • Whether the applicant's sentence was disproportionate to that imposed on co-offender Peter Gidaro, giving rise to a justifiable sense of grievance under the parity principle
  • Whether the sentence was manifestly excessive given the circumstances of the offending and the applicant's personal background
  • Whether the pre-sentence report recommendation had been properly considered by the sentencing judge

Decision

Delay and extension of time: Price J applied the established principle that the Court will generally require a satisfactory explanation for delay, particularly where it is considerable, and will look to the prospects of the appeal succeeding. The applicant attributed the delay to changes in legal representation and dissatisfaction with advice received from Legal Aid. The Court found this explanation unsatisfactory, particularly given that the applicant had been released from custody in November 2010 but did not file his application until April 2012, by which point the sentence was nearly served.

Parity: The applicant's co-offender, Gidaro, received a three-year good behaviour bond rather than a term of imprisonment. Price J acknowledged the significant disparity but found it was clearly explained by Gidaro's circumstances: his sentencing was deferred under s 11 of the Crimes (Sentencing Procedure) Act 1999 to allow him to enter residential drug rehabilitation, and by the time of sentencing he had made substantial progress in the program. The Court applied the principle from Postiglione v The Queen (1997) 189 CLR 295 that appellate intervention requires a disparity giving rise to a justifiable sense of grievance assessed by objective criteria. Given the marked difference in the offenders' circumstances, no such grievance arose here.

Manifest excess: The sentencing judge had taken into account the applicant's extensive criminal history commencing in 2000, the fact that the primary offence was committed just four days after release on parole, and that the applicant remained on parole from a separate sentence at the same time. These were properly treated as serious aggravating factors. The judge also considered the applicant's remorse, mental health issues, drug use, and the pre-sentence report. Price J found no likelihood of the applicant establishing the sentence was unreasonable or plainly unjust, applying the standard from Markarian v R (2005) 228 CLR 357. The pre-sentence report ground also failed: the report did not in fact recommend a bond, and in any event a sentencing judge is not obliged to follow probation service recommendations.

The Court concluded that, even if an extension of time were granted, the appeal would not be likely to succeed. That finding, combined with the unsatisfactory explanation for delay, led to the refusal of the extension.

Orders Made

  • The application for an extension of time in which to appeal was refused.

Key Takeaways

  • Under the parity principle, a significant sentencing disparity between co-offenders does not automatically give rise to a justifiable sense of grievance. Where the co-offender's lesser sentence is explicable by substantially different personal circumstances, such as meaningful rehabilitation progress, a court is entitled to treat the cases differently.
  • Refusing the extension of time, the Court of Criminal Appeal confirmed that applicants must provide a satisfactory explanation for delay and demonstrate that the appeal has real prospects of success. Dissatisfaction with legal advice, without more, did not meet that threshold.
  • A sentencing judge is not obliged to act upon the recommendations of the Probation and Parole Service, though the contents of a pre-sentence report must be considered.
  • Committing an indictable offence only four days after release on parole, while also subject to a separate parole order, was treated as a serious aggravating factor justifying a substantial head sentence.
  • No error in the sentencing exercise was established where the judge demonstrably weighed the relevant mitigating factors, including remorse, mental health, and drug dependency, against a significant criminal history and breach of conditional liberty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 527C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 11(1)

Cases:
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- R v Beattie [2000] NSWCCA 201
- Edwards v R [2009] NSWCCA 199
- R v Ilbay [2000] NSWCCA 251
- R v Kollas and Mitchell [2002] NSWCCA 491