Citation: Regina v Kurtzman [1999] NSWCCA 215
Court: Court of Criminal Appeal, New South Wales
Date: 19 July 1999
Judge(s): Smart AJ; Studdert J
Background
The appellant was a transport sub-contractor who, in late October 1994, diverted three loads of soya bean meal totalling approximately 82,420 tonnes from a legitimate delivery and sold them to a produce company at Moama, receiving around $8,000 per load. He pleaded guilty to three charges of disposing of property knowing it to have been stolen outside New South Wales. The value of the goods taken was assessed at $29,259.
The appellant's path to a guilty plea was complicated. He had originally been jointly indicted with another party in 1997 and pleaded not guilty, but that trial was aborted when it emerged his solicitor had no right of audience in a New South Wales court. A retrial was ordered. In March 1999, the prosecution reduced the charges to three counts, and the appellant agreed to give evidence against his co-accused before entering a guilty plea.
At sentencing in the District Court, the judge imposed two years' periodic detention and ordered compensation of $29,259, payable by quarterly instalments of $3,000. The appellant sought leave to appeal on the ground that the sentence was excessive, raising particular concerns about the burden of travelling to the Mannus Correctional Centre, approximately 300 kilometres from his home near Griffith, to serve his periodic detention.
Legal Issues
- Whether the two-year term of periodic detention was manifestly excessive given the appellant's subjective circumstances, including age, good character, financial hardship, and the practical burdens of serving periodic detention at a distant facility.
- Whether the sentencing judge gave sufficient credit for the appellant's guilty plea.
- Whether the sentencing judge gave sufficient credit for the appellant's purported assistance to the prosecution.
- Whether the travel and business disruption involved in serving periodic detention at Mannus constituted a hardship that warranted reduction of the sentence.
Decision
The Court of Criminal Appeal granted leave to appeal on the basis that matters of substance had been argued, but dismissed the appeal, finding no appealable error in the sentence imposed.
On the guilty plea discount, the Court noted that the plea came late and followed a failed joint trial in 1997, meaning the usual cost savings associated with an early guilty plea had largely not been achieved. The sentencing judge was found to have properly recognised the plea while accounting for those circumstances.
On the question of assistance to the prosecution, the Court found that the sentencing judge's cautious assessment was vindicated by subsequent events. When the appellant gave evidence at the co-accused's trial, the trial judge in that matter found the appellant's evidence actually assisted the defence and was so unhelpful to the prosecution that a number of charges were withdrawn from the jury. The assistance rendered was characterised as less than marginal.
Regarding the travel burden, the Court acknowledged that making a round trip of approximately 600 kilometres each weekend to serve periodic detention at Mannus was genuinely burdensome. However, the Court observed that this burden was plainly preferable to full-time custody, as all parties accepted. The Court also noted that the appellant had attended every weekend without default, and that from December 1999 he would transition to the community service component, which could be served in the Griffith area.
Orders Made
- Leave to appeal against sentence granted.
- Appeal dismissed.
Key Takeaways
- A two-year term of periodic detention was upheld as correct, not merely permissible, for a mature-age offender of previous good character who pleaded guilty to three serious dishonesty offences involving the disposal of stolen goods.
- The credit afforded for a guilty plea may be reduced where the plea is entered late and the usual costs of a contested hearing have already been substantially incurred through prior failed proceedings.
- Where an offender's assistance to the prosecution proves, on evidence, to have benefited the defence rather than the Crown, the sentencing court's conservative discount for that assistance will be difficult to challenge on appeal.
- Travel hardship arising from the location of a periodic detention facility does not of itself justify a reduction in sentence where the alternative is full-time custody, which all parties acknowledged was the more burdensome outcome.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing judge's failure to expressly address travel hardship in sentencing remarks does not amount to appealable error where the matter was raised in evidence and the overall sentence was within the available range.
Legislation and Cases Referenced
Legislation: None cited.
Cases: No cases formally cited in the decision, though reference was made to the sentencing remarks in the co-accused Moore's matter (unreported), which were relied upon to confirm the limited value of the appellant's prosecution assistance.