Anderson v The Queen

[2001] TASSC 130

[2001] TASSC 130

CITATION:              Anderson v R [2001] TASSC 130

PARTIES:  ANDERSON, Leighton
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 50/2001
DELIVERED ON:  7 November 2001
DELIVERED AT:  Hobart
HEARING DATES:  7 November 2001
JUDGMENT OF:  Cox CJ, Slicer and Evans JJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  R Browne
           Respondent:  A R Jacobs
Solicitors:
           Appellant:  G A Richardson
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2001] TASSC 130
Number of Paragraphs:  15

Serial No 130/2001
File No CCA 50/2001

LEIGHTON ANDERSON v THE QUEEN

REASONS FOR JUDGMENT  FULL COURT
(DELIVERED ORALLY)  COX CJ
  SLICER J
  EVANS J

7 NOVEMBER 2001

1. The appellant was convicted of the crime of receiving and sentenced to a term of imprisonment for a period of twelve months.  He claims that the learned sentencing judge was wrong in his determination of penalty on the grounds that:

"(a)     THAT the sentence was manifestly excessive in all of the circumstances;

(b)THAT the sentencing Judge failed to give any and/or sufficient weight to the rehabilitative aspects of sentence by not suspending any portion of the head sentence;

(c)THAT the sentencing Judge failed to give any and/or sufficient weight to the fact that the accused had no relevant prior convictions;

(d)THAT the sentencing Judge failed to give any and/or sufficient weight to the fact that the accused was unlikely to re-offend as he was no longer involved in the bodyworks profession that gave rise to his involvement in the offence;

(e)THAT the sentencing Judge failed to give any and/or sufficient weight to the fact that the accused had committed no offences of any kind since the date of this offence;

(f)THAT the sentencing Judge failed to give any and/or sufficient weight to the fact that the property found in the possession of the accused was returned to its proper owner undamaged."

1. During the course of argument, counsel put the appellant's case in that the sentence was manifestly excessive (ground (a)), as being outside of the range of penalties appropriate for a case of this nature and that grounds (b) - (f) were identified particulars indicating the factors which suggested that the penalty was excessive.  We accept that grounds (b) - (f) do not rely on the existence of any identifiable specific error and are in the nature of particulars of the first ground.

1. On 17 August 1999, a new Ford Explorer motor vehicle ("the motor vehicle") valued at $50,000 was stolen from Tilford Motors Hobart. 

1. On 19 August the appellant was seen by police driving the motor vehicle along Bass Highway near Devonport and intercepted by them.  At the time of interception the original number plates had been removed and replaced with others belonging to a motor vehicle registered in the appellant's name.  He told police that he did not know that the vehicle had been stolen nor whose vehicle it was, but that "… some bloke dropped it off to me last night". 

1. At trial, the appellant gave an account of having found the vehicle at his work premises together with a note, which he had since lost, which suggested that the vehicle was to cover a debt due by an unknown person to the appellant.  Believing he was being "set up", the appellant had hidden the vehicle, affixed false number plates and was driving the vehicle to a car park where it could be left so that, after the appellant had made an anonymous phone call to police, it could be recovered without the risk that the police might suspect the appellant of complicity. 

The account was clearly not believed by the jury.

1. The appellant, at the relevant time, was aged 31 and was self-employed in a motor body works business.  During the sentencing hearing, his counsel had told the learned sentencing judge that the business had closed some twelve months' previous with debts of approximately $50,000.  At the time of the hearing he was employed as a teacher by TAFE Tasmania.

1. For the purpose of the hearing, the appellant admitted that:

"… on the 12^th of May 1999 at Somerset (he) was in possession of a Holden Commodore sedan which had been stolen in Hobart on the 10^th day of May 1999".

He had been convicted of the offence of motor vehicle stealing in the Court of Petty Sessions on 29 May 2000, with respect to his possession of the motor vehicle on 12 May.  The appellant had an extensive record of traffic matters, but no relevant prior convictions.  He told the Court that this crime had been committed whilst he was on bail for the possession on 12 May.

1. Before turning to the ground of "manifestly excessive", it is first necessary to consider the particulars.  Grounds (c) and (e) do not fit comfortably together.  The appellant had committed a similar offence some three months' previous.  If that cannot be taken into account, then the subsequent conviction ought count as a subsequent matter.  The learned sentencing judge did not treat it as a prior conviction, but quite properly regarded it:

"… as very serious that he committed this crime only about four months after being found unlawfully in possession of another vehicle."

Implicit in those comments must be the fact, made known to the Court, that the crime was committed whilst on bail.

1. The matter referred to in ground (d) was not specifically put to the learned sentencing judge, but the cessation of the business was.  The appellant was still engaged in the industry as a teacher, lecturing in panel beating and motor body repairs, and an assertion of lack of opportunity while relevant ought have little weight in the circumstances of this case.

1. Ground (f) is not strictly correct.  There was no suggestion that the vehicle had been damaged, simply that the recovery of a new vehicle after use precluded the dealer from selling it as a new vehicle.  The fact that the thieves had driven the motor vehicle before delivering it to the appellant does not absolve him of responsibility for its use.

1. Grounds (b) and (e) insofar as they go to character, were matters taken into account.  Post-offence conduct is usually significant when there has been a lengthy delay between the dates of offence and sentence.  Cases such as those are relied upon by the appellant (R v McInerney (1986) 42 SASR 111; Smith v R (1982) 7 A Crim R 437, R v Todd [1982] 2 NSWLR 517; Duncan v R (1983) 47 ALR 746) are relevant, but ought not be elevated to statements of unvarying principle. In many cases, lengthy delay itself affords a special circumstance and the demonstrated rehabilitation or change on the part of the offender is a cogent reason to ameliorate penalty. In this case, the time elapsed between offence and sentence was relatively small. The normal approach is to treat post-offence conduct as part of the general relevance of character.

However, the factors identified above, do form part of the sentencing matrix. But the crime was serious and had characteristics which differed from many of the sentencing cases referred to by counsel.

1. The appellant was a mature adult engaged in the motor vehicle industry.  As the owner of a body works business, he was well placed to act as a receiver of new vehicles which might require disguise or modification.  His involvement was that of personal gain either through resale, commission or retention.  The finding of the learned sentencing judge that he had no evidence as to what the appellant intended to do with the vehicle did not deprive the transaction of its commercial character.  Recovery of stolen vehicles, especially if they have been processed "through the trade" is difficult and the crime hard to detect.  The value of the vehicle was some $50,000.  That it was recovered in good condition was a consequence of an observant police officer rather than any action taken by the appellant.  The appellant was not entitled to the benefit of a plea, early or otherwise.

1. Counsel for the appellant relies on comparable sentencing cases to show that the sentence of twelve months was excessive in its own right in that it was outside of the sentencing range.  The approach taken by this Court in its consideration of "comparable cases" and sentencing range has been stated in Franklin v R A82/1991.  Comparison of case against case or circumstance against circumstance can be misleading, since the variables would require a detailed examination of each case used before any comparison can be made.  A range of penalties is useful in attempting to achieve consistency, but ought not become a mathematical exercise.

1. In the many examples of sentences provided to the Court by counsel, who employed a valid methodology of selection, there are cases where a significant sentence has been imposed for a commercial transaction involving property of a high value conducted by a mature offender with special skills and resources.  This is such a case.  The sentence of twelve months' imprisonment was within the appropriate parameters for a crime of this nature committed by a person with the characteristics of the offender.

1. In our opinion, the ground that the sentence was manifestly excessive has not been made out.

The appeal against sentence will be dismissed.