Citation: R v Katahie [2019] NSWDC 568
Court: District Court of New South Wales
Date: 17 July 2019
Judge: Bennett SC DCJ
Background
The offender was one of several participants in an organised scheme to steal, alter, and resell watercraft in Sydney. The scheme involved stealing a jet ski, grinding off its genuine hull identification number (HIN), attaching a false HIN, and then re-registering the vessel using fabricated documentation. Once the jet ski carried fraudulent registration papers, it was sold on to an unsuspecting buyer.
The offender's role was at the retail end of the fraud. In January 2016, he sold the fraudulently re-registered jet ski to a buyer for $1,750, delivering it along with registration papers he knew were associated with a non-genuine HIN. The principal architects of the broader scheme were two co-offenders who had acquired and modified multiple stolen vessels; the offender's involvement was confined to this single sale.
The offender was charged under s 154H(1)(d) of the Crimes Act 1900, which carries a maximum penalty of seven years' imprisonment. He pleaded guilty on a fresh indictment two days after the trial was scheduled to commence, following protracted negotiations between the Crown and the defence.
Legal Issues
- What weight should be given to the timing of the guilty plea, given it came after protracted negotiations rather than at the earliest opportunity in the ordinary sense?
- Whether the offender was on conditional liberty at the time of the offending, making that an applicable aggravating factor under the sentencing legislation
- How parity principles applied given multiple co-offenders had already been sentenced, with outcomes ranging from bonds to terms of imprisonment
- What sentence was appropriate for a peripheral participant with an extensive prior record, having regard to proportionality, specific deterrence, and rehabilitation
- Whether a forfeiture order for the proceeds of the offending was appropriate
Decision
Bennett SC DCJ accepted that the guilty plea was entered at the first opportunity available once the fresh indictment was filed, and gave the offender credit accordingly. The court noted that while the indictment particularised conduct through to 31 January 2017, the agreed facts established the offending concluded in January 2016, before the offender was placed on conditional liberty in February 2017. Accordingly, the aggravating factor of offending while on conditional liberty did not apply.
On parity, the court surveyed the sentences imposed on all co-offenders. The two principal offenders, who had re-birthed multiple vessels, received terms of imprisonment of over two years each, with short non-parole periods reflecting findings of special circumstances. Other participants with more limited roles were dealt with by way of bonds in the Local Court. The offender's role was confined to the single transaction, placing him closer in culpability to those dealt with by bond.
The offender's prior record was extensive for his age, including prior convictions for robbery, assault, affray, and driving offences. The court applied the principle from Veen v The Queen (No 2) that a prior record informs the assessment of specific deterrence, rehabilitation, and the withholding of leniency, but does not aggravate the objective seriousness of the current offending or justify a sentence disproportionate to that offending.
Weighing the offender's limited role, the parity considerations, and all relevant factors, the court concluded that a conviction was warranted but that the matter could be disposed of under s 9 of the Crimes (Sentencing Procedure) Act 1999, a community corrections order without a custodial term. The court also made a pecuniary penalty order for the $1,750 proceeds of the sale, with the offender's consent.
Orders Made
- Conviction recorded for the offence under s 154H(1)(d) of the Crimes Act 1900
- Community corrections order imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months, with standard conditions including no further offending, attendance at court if called upon, and supervision by Community Corrections at Bankstown (offender required to report by 19 July 2019)
- Pecuniary penalty order made under s 24(1) of the Confiscation of Proceeds of Crime Act 1989: the offender to pay the State of New South Wales $1,750
- Exhibits to remain on file for 28 days or such longer period as required
Key Takeaways
- The District Court confirmed that where agreed facts establish a narrower period of offending than that particularised on the indictment, the sentencing court proceeds on the narrower factual basis when assessing aggravating factors such as conditional liberty.
- Parity is a genuine constraint in multi-offender sentencing: the court conducted a detailed comparison across all co-offenders and calibrated the sentence to reflect the offender's demonstrably lesser role.
- Under Veen v The Queen (No 2), an extensive criminal history bears on specific deterrence and rehabilitation but cannot inflate the sentence beyond what is proportionate to the objective gravity of the particular offending.
- A s 9 community corrections order remained available, and was imposed, even where the offender had a significant prior record, provided the offending role was sufficiently peripheral and parity considerations supported a non-custodial outcome.
- Consent to a pecuniary penalty order under the Confiscation of Proceeds of Crime Act 1989 enabled the court to order forfeiture of the exact proceeds received from the fraudulent sale, here $1,750.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 154H(1)(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, Part 4 Division 1A
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 24(1)
Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465
- McNaughton [2006] NSWCCA 242
- Qutami [2001] NSWCCA 353