Citation: R v Walden [2001] NSWCCA 365
Court: NSW Court of Criminal Appeal
Date: 14 September 2001
Judge(s): Sully J; Carruthers AJ
Background
The applicant pleaded guilty in the Bathurst District Court to four counts arising from conduct between December 1996 and October 1998. Two counts related to obtaining money by deception through false insurance claims involving vehicles falsely reported as stolen, with vehicles valued at approximately $80,000 in aggregate. The remaining two counts involved receiving stolen prime movers, a practice known as "rebirthing" (the fraudulent re-identification of stolen vehicles for further use or sale).
The sentencing judge imposed concurrent sentences, with the effective overall sentence being 32 months imprisonment with a non-parole period of two years. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.
The applicant ran a small manufacturing business in financial difficulty at the time of the offences. His criminal record extended back to 1970, and he was still subject to a three-year good behaviour recognisance (a form of conditional bond) when the first of the subject offences was committed.
Legal Issues
- Whether the sentences were manifestly excessive given the absence of evidence establishing the actual extent of loss to the owners or insurers of the relevant vehicles
- Whether the sentencing judge failed to apply the principle of totality by not accounting for a prior sentence of four months periodic detention imposed in September 1998 for stealing a motor vehicle, which overlapped in time with the subject offences
- Whether the applicant's subjective circumstances, including his family situation and community involvement, warranted a more lenient outcome
Decision
The Court of Criminal Appeal rejected the argument that the absence of evidence as to the precise loss suffered by owners or insurers rendered the sentences excessive. Carruthers AJ, who delivered the primary judgment, found that the objective circumstances of the offending were serious, and that the sentences imposed fell well within the range available to the sentencing judge. Indeed, the Court considered the sentences to be toward the lower and more lenient end of the spectrum.
On the totality argument, the applicant relied on the High Court decision in Mill v The Queen (1988) 168 CLR 599, contending that the sentencing judge ought to have considered what a combined appropriate sentence would have been had the earlier 1998 motor vehicle theft and the subject offences been dealt with together. The Court found it difficult to characterise this as a Mill-type case, and noted that the earlier offence had in any event been a separate and distinct matter dealt with at a different time in different proceedings.
The fact that the applicant was still on a three-year recognisance when the first offence was committed was identified as a significant aggravating factor. The Court acknowledged the applicant's subjective circumstances, including his family situation and charitable involvement, and noted that the sentencing judge had already factored a 20 percent discount for the guilty pleas and shown a degree of leniency toward the applicant's personal circumstances. No error in the sentencing exercise was established.
Carruthers AJ expressed some personal hesitation about granting leave to appeal at all, but the Court ultimately granted leave and dismissed the appeal.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of precise evidence as to the quantum of loss suffered by owners or insurers does not, of itself, render a sentence for receiving offences manifestly excessive.
- A conviction for rebirthing stolen vehicles carries serious objective weight, particularly where the offender declines to assist police in identifying the source of the stolen goods.
- The totality principle, as developed in Mill v The Queen, applies where an offender is being sentenced for an offence that was committed during the same period as earlier-sentenced offences and those matters ought properly to have been dealt with together. The Court found this case did not meet that threshold.
- Remaining subject to a good behaviour recognisance at the time of offending constitutes a significant aggravating factor in sentencing.
- Where a sentencing judge has already applied a guilty plea discount and demonstrated consideration for an applicant's subjective circumstances, an appellate court is unlikely to disturb sentences that fall within the available range, particularly where those sentences sit toward the more lenient end of the spectrum.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 178BA(1), 188, 189A(1)
Cases
- Mill v The Queen (1988) 168 CLR 599