Citation: Adnan Abdallah v Regina [2006] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 31 March 2006
Judge(s): Hidden J, Kirby J, Hislop J
Background
The applicant, a man in his fifties with no prior criminal history, pleaded guilty in the District Court to two counts of receiving stolen property under NSW law and one count of receiving property stolen interstate. The offences involved three separate consignments of goods taken from freight yards: approximately 200 range hoods, over 10,000 Turkish-style rugs, and 147 sets of luggage. The stolen goods had a combined value running into the hundreds of thousands of dollars, and the applicant was observed by police actively storing and attempting to sell the items.
The sentencing judge imposed concurrent terms of two and a half years' imprisonment, with a non-parole period of eighteen months, on each count. Two further receiving offences, taken into account on a Form 1 (a procedure allowing additional offences to be considered at sentencing without formal conviction), were also before the court.
The applicant sought leave to appeal, arguing the sentencing judge should have imposed periodic detention rather than full-time custody, given his age, fragile health, psychological vulnerability, and absence of prior offending.
Legal Issues
- Whether a full-time custodial sentence was appropriate given the applicant's age, prior good character, fragile health, and psychological vulnerability
- Whether the sentencing judge erred in concluding that no penalty other than full-time imprisonment was appropriate under s 5(1) of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge gave adequate weight to mitigating factors, including the recovery of the stolen property
Decision
Hidden J, with Kirby J and Hislop J agreeing, granted leave to appeal but dismissed the appeal. The Court found that the sentencing judge's reasoning disclosed no error and that the sentence imposed was appropriate in light of both the objective gravity of the offences and the applicant's personal circumstances.
The sentencing judge had expressly acknowledged the applicant's difficult subjective circumstances, describing any period of imprisonment as involving "particular hardship and suffering" given his age and fragile condition. Nonetheless, the judge concluded that the offending was organised, premeditated, and repeated, and that it contributed to the prevalence of theft in the community. The Court of Criminal Appeal found these observations were "entirely apposite."
The Court noted that while Judicial Commission statistics showed many receiving cases are resolved without full-time custody, the present offending involved receiving on a scale that does not commonly come before the courts. The recovery of the stolen property and the applicant's subjective case were found to have been given appropriate weight in the sentence actually imposed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that full-time custody can be appropriate for receiving offences even where an offender has prior good character, is of mature age, and faces particular hardship from imprisonment.
- The scale and organisation of the receiving conduct were decisive factors. The Court distinguished the present case from the majority of receiving matters by reference to the large volume and value of property involved across multiple separate episodes.
- A sentencing court's obligation under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 to consider alternatives to imprisonment is satisfied where the judge expressly turns its mind to that question and concludes that objective seriousness forecloses those alternatives.
- Statistical data from the Judicial Commission showing that many receiving offences are resolved without full-time custody does not, of itself, establish error in imposing a custodial sentence where the facts place the case outside the ordinary range.
- No error was established merely because the sentencing judge expressed sympathy for the applicant's circumstances; the Court found the judge had balanced subjective factors against objective seriousness in a manner consistent with established principle.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 188, 189A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1)
Cases:
- R v Phillips (NSW Court of Criminal Appeal, unreported, 11 December 1991)