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Court of Criminal Appeal 26 March 2002

R v Strbik

[2002] NSWCCA 101

Fraud & dishonestyTheft & property

Citation: R v Strbik [2002] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 26 March 2002
Judge(s): Studdert J; Smart AJ

Background

The applicant, a mechanic, pleaded guilty in the District Court to eleven counts of receiving stolen motor vehicles and one count of attempting to steal a motor vehicle. The sentencing judge was also asked to take into account a further eighteen scheduled offences of receiving and goods in custody. The offences spanned approximately fifteen months between December 1998 and March 2000.

The applicant was part of an organised car rebirthing operation that specialised in high-performance vehicles, primarily Holdens. Stolen cars were re-identified using compliance plates from wrecked vehicles, with engine and chassis numbers altered, and accessories transferred from other stolen vehicles before the cars were sold or held in false names. The total value of property involved across all offences was approximately $1.26 million.

The District Court sentenced the applicant to a principal term of seven years and two months, with a non-parole period of five years and four months, together with a series of concurrent fixed terms for the remaining counts. The applicant sought leave to appeal on the grounds that the sentences were manifestly excessive, that insufficient discount had been allowed for his guilty pleas, and that the sentencing judge should have found special circumstances.

  • Whether the discount applied for the guilty pleas (20%) was adequate, having regard to the applicant's willingness to facilitate the course of justice
  • Whether the principal sentence of seven years and two months was manifestly excessive given the objective seriousness of the offending and the subjective circumstances
  • Whether the sentencing judge erred in declining to find special circumstances, which would have altered the standard ratio between the non-parole period and the head sentence

Decision

On the discount for guilty pleas, the Court noted that following the High Court's decision in Cameron v The Queen, the rationale for a plea discount rests on the offender's willingness to facilitate the course of justice rather than merely saving the community the expense of a trial. The sentencing judge initially indicated a 25% discount during submissions but ultimately applied 20%. The Court found the change did not of itself demonstrate error, and that a 20% discount fell within the permissible range of discretion in the circumstances.

On manifest excess, the Court accepted that the applicant's overall criminality was objectively grave. The total value of property involved was substantial, the operation was organised and sophisticated, and car rebirthing was characterised as a social scourge. Despite the applicant's lack of prior indictable convictions and his early pleas reflecting some contrition, the Court was not persuaded that the principal sentence or the overall sentence structure was outside the range available to the sentencing judge.

On special circumstances, the Court acknowledged the material from the psychologist and the pre-sentence report, which identified that the applicant had difficulty forming relationships, lacked social confidence, and was assessed as suitable for a supervision order. However, the Court found this evidence was meagre. It was not apparent how a longer period of parole supervision beyond the nearly two years already available under the existing sentence structure would have specifically addressed the applicant's identified difficulties, particularly where the psychologist nominated no required timeframe for treatment.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under Cameron v The Queen, the proper basis for a guilty plea discount is the offender's willingness to facilitate the course of justice, not the saving of trial expense; the Court of Criminal Appeal confirmed this principle applied to the discount assessment here.
  • A sentencing judge who indicates one discount percentage during submissions but imposes a lower discount in the final sentence does not necessarily commit an error, provided the discount ultimately applied falls within the permissible discretionary range.
  • Where an applicant relies on psychological and pre-sentence report evidence to establish special circumstances, the evidence must do more than identify general difficulties; it must give the court a basis for concluding that a longer than usual supervision period on parole would meaningfully address those difficulties.
  • Organised property crime involving multiple offences over an extended period, significant total value, and a structured criminal enterprise will be treated as objectively serious, supporting sentences well above the midpoint of the available range.
  • No error was established in the sentence structure despite the head sentence on the principal count approaching the maximum, given that the scheduled offences and the scale of the overall criminal enterprise were properly reflected in the principal count.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 154AA, 188, 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 51A

Cases
- Cameron v The Queen [2002] HCA 6
- R v Thomson & Houlton (2000) 49 NSWLR 383