Citation: Regina v Minh Duong [1999] NSWCCA 448 revised 27/06/2000
Court: NSW Court of Criminal Appeal
Date: 8 December 1999
Judge(s): Meagher JA, Newman J, Greg James J
Background
The respondent was a hairdresser based in Cabramatta who operated a systematic business purchasing stolen goods from shoplifters and drug addicts. Police located stolen goods across three premises: his barber shop, his home, and his de facto partner's home. The goods were purchased at approximately one third of their market value, with the total value exceeding $200,000.
The respondent pleaded guilty to ten charges of receiving stolen goods, with 25 further charges of goods in custody taken into account. Notably, five of the ten offences were committed while the respondent was on bail. The sentencing judge in the District Court imposed 400 hours of community service on the first charge and one hour of community service for each remaining charge.
The Crown appealed on the ground that the original sentences were manifestly inadequate.
Legal Issues
- Whether the original community service sentences were manifestly inadequate for a professional receiver of stolen goods operating at significant scale
- Whether the sentencing judge correctly identified and applied the relevant sentencing principles for professional receiving
- Whether the sentencing judge erred in characterising certain facts as mitigating circumstances
- What the appropriate sentences should be, applying the principles of double jeopardy and the High Court's guidance in Pearce v R
Decision
The Court of Criminal Appeal allowed the appeal, finding the original sentences were plainly inadequate. Meagher JA, with whom Newman J and James J agreed, held that the sentencing judge failed to apply established principles governing professional receiving. The judge had not adequately treated the scale, organisation, and repetition of the offending as aggravating features.
The sentencing judge also erred in treating the respondent's loss of $40,000 worth of stolen property through improvident investments as a mitigating circumstance. The Court found this was not a genuine mitigating factor. The sentencing judge further erred in finding "unusual or even exceptional circumstances" where none existed.
The Court observed that the respondent, by purchasing from known drug addicts and shoplifters, effectively encouraged those criminal activities. Committing five offences while on bail was an additional aggravating factor that the sentencing judge appeared to have overlooked entirely.
In restructuring the sentences, the Court took into account the respondent's guilty plea, his absence of prior convictions, the principles of double jeopardy, the community service already performed, and the accumulation of multiple sentences. Special circumstances were found to apply given the sentence accumulation and the need for a substantial period of supervision, particularly in light of the respondent's pattern of offending after arrest.
Orders Made
- Appeal allowed
- Original sentences quashed
- Count 1: Fixed term of imprisonment of two years and 11 months, commencing 8 December 1999, expiring 7 November 2002
- Count 6: Minimum term of one month commencing 8 November 2002, expiring 7 December 2002; additional term of two years and 11 months commencing 8 December 2002, expiring 7 November 2005; respondent to be released to parole on 8 December 2002 and subject to prescribed supervision during the parole period
- Counts 2 to 5 and 7 to 10 (each): Fixed term of one year, commencing 8 December 1999, expiring 7 December 2000
- Scheduled matters taken into account on Count 1
Key Takeaways
- Professional receiving at commercial scale, involving large quantities of stolen goods purchased from drug addicts and shoplifters, attracts substantial custodial sentences in New South Wales.
- Committing offences while on bail is a significant aggravating factor that a sentencing court must expressly address; failure to do so constitutes error.
- A financial loss suffered by a respondent through his own use of stolen property is not a mitigating circumstance in receiving offences.
- The Court of Criminal Appeal confirmed the principle, drawn from R v Peuna, that professional receivers contribute directly to the prevalence of theft and shoplifting, and that this connection is relevant to the seriousness of the offending.
- Special circumstances can arise from the accumulation of sentences across multiple counts, particularly where a lengthy period of post-release supervision is warranted by the offender's conduct.
Legislation and Cases Referenced
Cases:
- R v Peuna (unreported, NSW Court of Criminal Appeal, 15 and 23 July 1992)
- Pearce v R (1998) 194 CLR 610
Legislation: No specific legislation was cited in the judgment text.