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Court of Criminal Appeal 1 March 2005

Regina v Palinko

[2005] NSWCCA 46

Theft & property
CRIMINAL LAW: S188 CRIMES ACT RECEIVING MOTOR VEHICLE OBJECTIVE SERIOUSNESS USE OF SUBJECTIVE FEATURES CONCURRENCY AND ACCUMULATION.

Citation: Regina v Palinko [2005] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 1 March 2005
Judge(s): Bryson JA, Barr J, Hoeben J

Background

The applicant pleaded guilty in the Local Court to two counts of receiving stolen motor vehicles under s 188 of the Crimes Act 1900, each carrying a maximum penalty of 12 years imprisonment. The first offence involved a stolen Peugeot coupe, which the applicant "rebirthed" by swapping identification plates and chassis numbers from his own damaged vehicle before re-registering it at the RTA. The second involved a stolen Audi, which he stripped for parts and sold to a relative, disposing of the remainder at a recycling yard.

Both stolen vehicles had been taken from car dealerships by the applicant's former partner using subterfuge. The applicant conceded he suspected both vehicles were stolen but asked no questions. He was arrested in January 2004 and made full admissions to police.

At sentence in the District Court, his Honour Delaney DCJ imposed a fixed term of 18 months for the first count and a head sentence of 3 years and 3 months (with a non-parole period of 2 years) for the second, partially accumulated to produce an effective total of 3 years and 9 months with a non-parole period of 2 years and 6 months. The applicant sought leave to appeal against the sentences.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences as near the middle of the range
  • Whether subjective factors were improperly used to elevate the assessment of objective seriousness
  • Whether the 25 percent discount for the early plea of guilty failed to adequately account for the applicant's cooperation with police in establishing the Crown case for the Audi offence
  • Whether the two sentences ought to have been made fully concurrent rather than partially accumulated

Decision

The Court of Criminal Appeal dismissed all four grounds of appeal.

On objective seriousness, the Court found no error in placing the offences near the middle of the range. The Peugeot offence involved deliberate rebirthing and fraudulent re-registration. The Audi offence involved greater planning: the applicant systematically stripped the vehicle and sold parts before destroying the remainder. The existence of two offences committed within two months, combined with the high value of the vehicles (exceeding $100,000 in total), supported the sentencing judge's assessment.

On the use of subjective features, the Court rejected the submission that the sentencing judge had impermissibly incorporated subjective matters into the objective seriousness analysis. The remarks on sentence were read as a whole, and the Court was satisfied the judge had maintained the proper distinction between objective and subjective considerations.

On the plea discount and cooperation, the Court noted that under the approach confirmed in R v Thomson and Houlton, assistance provided to authorities through a confession underlying a strong Crown case is appropriately reflected within the utilitarian value of an early plea, attracting a discount of between 10 and 25 percent. Because the full 25 percent discount had been applied, no error arose. The Court also observed this ground had not been raised below, and no basis for granting leave on that point had been established. On accumulation, the Court held the two offences were factually distinct: they involved different victims, different circumstances, and the second (Audi) offence involved more planning than the first. Partial accumulation was available in principle and no error was demonstrated in its application.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Placing the objective seriousness of receiving stolen motor vehicles near the middle of the range is available where the offences involve deliberate rebirthing, systematic dismantling, fraudulent re-registration, high-value vehicles, and repeat offending within a short period.
  • The sentencing court's remarks must be read as a whole when assessing whether objective and subjective factors have been conflated; isolated passages are not read in isolation.
  • Under R v Thomson and Houlton, cooperation with police through confession is appropriately accounted for within the utilitarian value of an early plea, justifying a discount of up to 25 percent rather than a separate sentencing reduction.
  • Partial accumulation of sentences for two receiving offences is available in principle where the offences are factually distinct, involve different victims, and one demonstrates a greater degree of planning than the other.
  • No error was established in the sentencing judge's approach to concurrency merely because the two offences were committed close together in time; factual distinctiveness between counts supports partial accumulation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 188 (receiving stolen goods, including motor vehicles)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases:
- House v The King (1936) 55 CLR 499
- Pearce v The Queen (1998) 194 CLR 610
- R v Ellis (1986) 6 NSWLR 603
- R v Thomson and Houlton (2000) 49 NSWLR 383