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District Court 27 September 2022

R v Arja

[2022] NSWDC 433

Fraud & dishonestyTheft & property
SENTENCE ATTEMPT TO STEAL A MOTOR VEHICLE LARCENY AS A BAILEE RECEIVE STOLEN MOTOR VEHICLE.

Citation: R v Arja [2022] NSWDC 433
Court: District Court of New South Wales
Date: 27 September 2022
Judge: Wilson SC DCJ

Background

The offender pleaded guilty to eight charges arising from a course of conduct between 16 December 2019 and 24 July 2020. The offending centred on a property in Rossmore, New South Wales, where multiple stolen motor vehicles were located by police in January 2020.

The charges included recklessly dealing with property that would become an instrument of crime (two rolled-up counts), three counts of being an accessory before the fact to publishing a false statement, attempting to steal a motor vehicle, larceny as a bailee, and receiving a stolen motor vehicle. The conduct broadly involved the offender accepting possession of vehicles and their keys, in circumstances where insurance fraud was subsequently carried out by others in relation to those vehicles.

The offender was arrested on 13 August 2020 and had been in continuous custody from that date. The matter was committed from Burwood Local Court in November 2021, and guilty pleas on indictment were entered in April 2022.

  • What sentence was appropriate for each of the eight offences, having regard to the offender's culpability, the circumstances of the offending, and the applicable maximum penalties?
  • What discount applied to each count to reflect the timing of the guilty plea?
  • How should the principle of totality be applied to produce an aggregate sentence that was just and appropriate for the overall course of conduct?

Decision

Wilson SC DCJ sentenced the offender on all eight counts, applying a 10% guilty plea discount to seven of the counts. For count 3 (recklessly dealing with the proceeds of crime), the offender had offered to plead guilty in the Local Court and received a more substantial discount of 25%, reflecting the earlier utilisation of that offer and its greater benefit to the administration of justice.

In determining individual sentences, the court assessed each offence by reference to its maximum penalty and the offender's culpability. For the rolled-up instrument of crime charge (count 1), the court noted that while the offender accepted possession of the vehicles, there was no evidence he directly benefited from the insurance claims or assisted in making them. His liability rested on his admission that he was aware of the possibility that his conduct would facilitate fraud.

On the question of totality, the court applied the principle confirmed by the High Court in Johnson v The Queen, drawing on the statement adopted in Mill v The Queen. The court was required to look beyond the arithmetic of individual sentences and assess whether the aggregate was just and appropriate to the totality of criminal behaviour. Given that the offending represented a course of conduct over approximately six months, the court determined a moderate degree of concurrency with some accumulation was appropriate.

The resulting aggregate head sentence was five years' imprisonment, with a non-parole period of three years.

Orders Made

  • Total aggregate head sentence of five years' imprisonment, commencing 13 August 2020 and expiring 12 August 2025.
  • Non-parole period of three years, commencing 13 August 2020 and expiring 12 August 2023, at which time the offender becomes eligible for consideration of parole.
  • Guilty plea discounts applied: 25% for count 3; 10% for all remaining counts.

Key Takeaways

  • A guilty plea discount under the Crimes (Sentencing Procedure) Act 1999 (NSW) is calibrated to the timing of the plea: an offer made in the Local Court attracted a 25% discount, while pleas entered at the District Court stage attracted only 10%.
  • Recklessly dealing with property that would become an instrument of crime, under s 193D(2) of the Crimes Act 1900 (NSW), does not require proof that the offender directly benefited from or assisted in the underlying fraud; an admission of awareness of the possibility suffices.
  • The totality principle, as affirmed in Johnson v The Queen and Mill v The Queen, requires a sentencing court to look beyond the aggregate of individually calculated sentences and assess whether the combined sentence is just and appropriate to the overall criminal conduct.
  • Where multiple offences form part of a connected course of conduct over a defined period, a moderate degree of concurrency (rather than full accumulation) may be appropriate to reflect that connection.
  • Maximum penalties under the Crimes Act 1900 (NSW) serve as guideposts for the sentencing court rather than as presumptive starting points; none of the eight offences in this matter carried a standard non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 125, 154F, 188(1), 192G(b), 193B(3), 193D(2), 344A(1), 346
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A(3), 25D(3)(b)(i)

Cases
- Johnson v The Queen [2004] HCA 15
- Mill v The Queen (1988) 166 CLR 59