Jago v Tasmania
[2006] TASSC 93
•13 November 2006
[2006] TASSC 93
CITATION: Jago v Tasmania [2006] TASSC 93
PARTIES: JAGO, Justin Phillip
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 24/2006
DELIVERED ON: 13 November 2006
DELIVERED AT: Hobart
HEARING DATE: 30 October 2006
JUDGMENT OF: Underwood CJ, Slicer and Tennent JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Other matters - Whether cumulative sentences manifestly excessive – Totality principle – Impact of prior offending and role in offending on sentence.
Aust Dig Criminal Law [851]
REPRESENTATION:
Counsel:
Appellant: G A Richardson
Respondent: P Sherriff
Solicitors:
Appellant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 93
Number of paragraphs: 45
Serial No 93/2006
File No CCA 24/2006
JUSTIN PHILLIP JAGO v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ (Dissenting in Part)
SLICER J
TENNENT J
13 November 2006
Order of the Court
Appeal dismissed.
Serial No 93/2006
File No CCA 24/2006
JUSTIN PHILLIP JAGO v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
13 November 2006
The facts of this appeal are comprehensively set out in the reasons for judgment of Tennent J. A sentence of two years' imprisonment with a 12 month non-parole period for trafficking in a prohibited plant was well within the range of appropriate penalties. Although the applicant pleaded guilty, his conviction did not rest solely upon his confession and plea, for cogent evidence of trafficking was found by police when they searched his home.
The criminal conduct persisted for a period of two years and involved sales to the value of a quarter of a million dollars. The profits were in the order of $166,000. The appellant told police that he made sales every day during the two year period. As the learned sentencing judge said, the appellant was a major supplier. An aggravating feature was that the appellant's motivation was financial gain, for he did not use cannabis himself. Commercial trafficking in such a large quantity of a drug over such a long period for profit could easily have attracted a sentence of more than two years' imprisonment.
Counsel for the appellant submitted that the learned sentencing judge failed to take into account, or adequately take into account, the fact that "portion of the profits obtained were seized by the authorities". There was nothing in the material put before the learned sentencing judge to indicate that "the authorities" seized anything at all, so it was not a matter that his Honour should have taken into account.
No application was made for either a pecuniary penalty order or a forfeiture order. Had there been such an application, the likelihood of an order being made was a factor that should have been taken into account in the exercise of the sentencing discretion in accordance with the views expressed by the Court of Criminal Appeal (Vic) in R v Allen (1989) 41 A Crim R 51. However, as I observed in Stocks v R (2000) 9 Tas R 210 at 220, "Deprivation of profits from heinous criminal activity does not go in reduction of an appropriate penalty for the commission of that criminal activity."
Counsel for the respondent, who was counsel for the Crown at the sentencing hearing, told this Court that an application for a forfeiture order would be made shortly. However, this Court's task is to review penalty on the basis of the material before the learned sentencing judge, and in any event, having regard to the limitation provision imposed by the Crime (Confiscation of Profits) Act 1993, s11(2) and (3), it is questionable as to whether the Court would have jurisdiction to entertain the application at this late stage.
With respect to the crimes of receiving, burglary and stealing (2), I agree with Tennent J's observation that the submission of counsel for the appellant that the appellant's role in each of the three separate criminal episodes of dishonesty was peripheral is "somewhat disingenuous". All the crimes of dishonesty related to burglary and the stealing of safes. Although it is correct to say that the appellant was not the principal offender in any of the three criminal episodes, he was, as the learned sentencing judge said, a person who "plainly had a close association with criminals who burgled and stole safes".
The courts have always regarded safe-breaking as a very serious circumstance of aggravation of a crime of dishonesty. In Midson v R 26/1998, this Court was called upon to review a sentence of three years' imprisonment imposed with respect to aggravated burglary and stealing in excess of $10,000 from a safe. The appellant and others broke into business premises and broke open a safe. The appellant's job was to supply transport to the burgled premises and to return when summoned by mobile telephone in order to facilitate the getaway and disposal of the safe-breaking equipment. At 2, Cox CJ approved of the following statement in the judgment of Nettlefold J in Cadmen v R 15/1985:
"Crimes like safe-breaking are not the product of a sudden impulse. They are not a simple yielding to temptation and of backsliding. They are deliberate entries into criminal conduct."
However, Midson was described by the former Chief Justice as "a man of mature years with a very long history of criminal conduct." The appellant in this case was aged 25 or 26 years when he committed the crimes of dishonesty and had not previously been to prison. In April and May 1995, when he was aged 17 years, the appellant committed crimes of burglary and stealing on three occasions and the offence of motor vehicle stealing on two occasions. There was a further conviction for stealing in 2003 but that attracted only a "conviction recorded." Counsel for the appellant told this Court that the appellant had been convicted of indecent assault and sentenced to three months' imprisonment. We were told that this crime was committed after the crimes that are the subject of this appeal. We were also told that this conviction did not appear on the appellant's list of prior convictions that were put before the learned sentencing judge. However, counsel for the appellant at the sentencing hearing told the learned sentencing judge that "as noted from the prior convictions", his client had been to prison for three months and that the experience had been a "wake-up call." At all events, it seems clear that this conviction and sentence had no influence upon the orders of sentence that were made and which are the subject of this appeal.
Accordingly, the task was to impose sentence upon a man who had a limited number of prior convictions for crimes of dishonesty committed some eight years previously, and who had not been to prison for any offence of dishonesty. In addition the appellant was entitled to substantial reduction in an otherwise appropriate penalty because he would not have been convicted of any of the subject crimes had it not been for his confession and pleas of guilty, although it should be noted that he did not identify any of his criminal associates. The matter that is troubling me is the weight that the learned trial judge gave to these aspects of the case. It would seem to follow that the learned sentencing judge must have had in mind that an appropriate penalty in the circumstances of the case would have been substantially in excess of two years' imprisonment had there not been a confession and pleas of guilty.
Long experience working in the criminal courts shows that criminals do not usually begin a life of crime by being involved in safe-breaking at the request of burglars, as the Crown alleged in this case, and I agree completely with the learned sentencing judge when he said, "Some of the facts that form the basis on which [the appellant] is to be sentenced are difficult to believe, but nevertheless they must be accepted." His observation is correct, of course, and is in accordance with the decision of this Court in R v Causby [1984] Tas R 54. With respect to the count of burglary and one count of stealing, the appellant sold information to thieves who committed the burglary, and with respect to the crimes of receiving and the other count of stealing, the appellant played no role in the commission of the principal crimes, coming on the scene only after the event and only at the request of the principal offenders. Hard though it is to believe this account, that was the basis for imposing criminal sanction.
With respect to those who take a different view, I have reached the conclusion that some undefined error tainted the exercise of the sentencing discretion with respect to the sentence imposed for the crimes of dishonesty. Perhaps the learned sentencing judge did not give sufficient weight to the fact that there would have been no conviction at all but for the appellant's confession to the police. Perhaps the learned sentencing judge did not give sufficient weight to the appellant's antecedents. Whatever the reason, in my view, a sentence of two years' imprisonment which would equate to at least a sentence of two and a half years' imprisonment if there had been no confession or plea, was manifestly excessive.
I would allow the appeal to the extent of quashing the sentence of two years' imprisonment imposed with respect to counts 1 – 4 inclusive and would substitute a sentence of 18 months' imprisonment with a non-parole period of nine months, such sentence to be served cumulatively with the sentence imposed on count 5.
File No CCA 24/2006
JUSTIN PHILLIP JAGO v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
13 November 2006
The appellant pleaded guilty to five counts alleging the crimes or indictable offences of receiving stolen property, burglary, stealing (2) and trafficking in cannabis. Apart from the concurrent crimes of burglary and stealing (counts 2 and 3), each count comprised distinct occasions or courses of criminal conduct. He was sentenced to two years' imprisonment on the property offences and two years cumulative on the indictable offence of trafficking. The minimum non-parole period was fixed. The sole ground of appeal is that the sentences, or at least their aggregate, were manifestly excessive.
The learned sentencing judge found that:
"Some of the facts that form the basis upon which he is to be sentenced are difficult to believe, but nevertheless they must be accepted."
I would share that view but rather than attempt, in determining an appeal, to identify which facts his Honour found "difficult to believe" and which accorded with experience or were clearly consistent with the objective evidence, will simply accept the conclusions stated in the comments on passing sentence and assess the ground accordingly. Before doing so it is appropriate to consider some general matters which form a background to the specific conclusions reached and stated by the learned sentencing judge.
Prior record
At the time of sentence, the appellant was aged 28. He had previously been to prison. He had been ordered to undertake a cumulative total of 224 hours of community service in August and December 1995 respectively.
His record of previous convictions included:
Burglary 3 charges 8 August 1995 Stealing 3 charges 8 August 1995 Motor vehicle stealing 1 charge 8 August 1995 Motor vehicle stealing 7 December 1995 Stealing 21 August 2003 Possess prohibited substance 22 May 1995 Disturb the peace 21 January 2003 Unlawful possession of a dangerous article in public 21 January 2003 Breach of bail
22 May 1995
Other convictions for traffic offences were of little or no significance in the determination of sentence. The learned trial judge was entitled on the evidence presented on the hearing to observe, as he did, that the appellant "plainly had a close association with criminals who burgled and stole safes". Police had interviewed the appellant on 30 September 2003 in relation to the matters for which he was sentenced, following a search of his residence on the previous day. His admissions made on that day formed the basis of the facts as put to the court, following his plea, on 29 March 2006. He was not, as his counsel initially contended, entitled to the benefit of an early plea.
The learned sentencing judge was told that the appellant had "recently served a term of imprisonment", which his counsel believed to have been for three months.
The findings of the learned sentencing judge in relation to the crimes were:
(1)"The first count of receiving stolen property concerned a large floor safe that had contained $33,000 when stolen from a Scottsdale business premises. He became aware of its whereabouts and hired a concrete cutter and travelled to a pine forest where he broke into the safe. However, it was empty. He was helped by another man who owed him $500 for drugs and he wiped that debt in return for the help given."
Effectively he paid another the equivalent of $500 for that assistance in opening an empty safe.
(2)"As to the second and third counts of burglary and stealing, he received information that a wall mounted safe at a Prospect Vale business was worth stealing. He wiped a $300 drug debt for the information. He then instigated another to burgle the premises and steal the safe and its contents. The total value of property stolen was $4,064.85. He was paid $500 for the information he passed on. It is ordered that he pay compensation of $4,064.85 to James Major Lowish."
He had paid another $300 for providing information to be used for a criminal purpose and made a profit, on his account, in his instigation of others to commit the crimes.
(3)"The fourth count, stealing, concerned a safe containing $25,623.34 that was stolen in the course of a burglary at a retirement village in South Launceston. He drove a car, picked up those responsible and took them to a farm where he helped cut open the safe using tools he had purchased. He received $500 for his participation. It is ordered that he pay compensation of $25,623.34 to Tamar Park Pty Ltd."
(4)"The fifth count of trafficking arose as a result of a search of his home on 29 September 2003. Cash totalling over $16,000 was found there, most of it coming from trafficking in Indian Hemp. Also found was a tick book containing records of sales. 20 people were recorded as owing him nearly $8,000. Based upon the information he provided in an interview, he purchased marijuana in ounce bags and made sales from his home every day over a two year period. His sales total about $250,000 and he made a profit of about $166,000, based on his admissions. Therefore, he was a major supplier. He was not a user but was in it for the profit."
The appellant contends that his part in each of the property crimes was peripheral and his slight involvement shows the sentence to be manifestly excessive in the light of those circumstances. But a test of that submission is consideration of the appropriate penalty if the appellant had been either the principal offender or successful in his endeavours. The property which was the subject of the first four counts of the indictment amounted to $60,000 and had been obtained through planned and professional criminal activity. That the offender was unsuccessful in taking the $33,000 does not lessen culpability through intent. Information obtained and provided by him was essential to the successful execution of the Prospect Vale burglary. He was a principal to the theft of $25,600 from the retirement village at South Launceston. That he received a lesser share of the proceeds is of little consequence. A sentence of three to four years would not have been outside the permitted range had he been the principal and main beneficiary in each of the crimes. The sentence actually imposed represents acknowledgement of that lesser degree of involvement.
A co-offender, Thompson, was sentenced to a term of imprisonment of nine months for his part in the retirement village burglary. Thompson, on the material put at his sentencing hearing, received none of the proceeds of the burglary and his degree of involvement was limited to helping "to force the safe open with a crow bar". The theoretical component which could be allocated to the appellant in respect of count 4 is consistent with the sentence imposed on Thompson.
The trafficking in cannabis was commercial and conducted over a two year period. On the appellant's admissions it involved sales of approximately $250,000 and profits in the vicinity of $160,000. A sentence of two years' imprisonment does not, by comparison, show or manifest error.
The minimum non-parole period was fixed, providing the appellant with the opportunity for release after two years. That portion of the sentence accommodates the subjective characteristics claimed by the appellant.
I would dismiss the appeal.
File No CCA 24/2006
JUSTIN PHILLIP JAGO v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
13 November 2006
On 29 March 2006, the appellant pleaded guilty to five counts on an indictment dated 21 January 2004. He was sentenced to two years' imprisonment in respect of counts 1 to 4 inclusive and two years' imprisonment on count 5, a total of four years' imprisonment with a non-parole period of two years. Counts 1 to 4 were one count of receiving stolen property, one count of burglary and two counts of stealing. Count 5 was one count of trafficking in Indian hemp. The appellant now appeals the severity of that sentence, his sole ground of appeal being that the sentence was, in all the circumstances, manifestly excessive.
The substance of the attack on the sentence generally was that inadequate regard was paid to the appellant's lack of significant prior record, his plea of guilty and that his admissions to police formed the basis of the charges against him. More specifically in relation to the dishonesty matters, counsel submitted the appellant's involvement was very much on the periphery of the incidents. In relation to the trafficking, counsel submitted inadequate regard had been paid to the fact that a portion of the profits obtained were seized by the police.
As to that last matter, police found quantities of cash when they conducted a search of the appellant's premises on 29 September 2003. In all, about $16,310 was found. While it was not clear from the papers before the Court whether those monies were seized by police, it became apparent at the hearing that there was an outstanding application by the State for forfeiture of monies seized which was to be dealt with shortly. I have assumed for the purpose of these reasons that the police did seize $16,310 but that, absent an appropriate order by way of forfeiture or pecuniary penalty, the appellant is entitled to its return. There was no material about any other property seized.
Appellant's role in dishonesty matters
As to count 1, in April 2003 a safe containing $33,000 was stolen from business premises. In September 2003 the appellant told police that a few weeks after the theft, the person who stole the safe told him about the theft and that there might be some money still in the safe. The appellant hired a concrete cutter for $120. He went with the original thief to some bush near Scottsdale and broke into the safe. It was empty. The appellant wiped a $500 drug debt of the thief in exchange for the information about the safe. In financial terms he gained nothing from the deal. The appellant, while making admissions about these facts, refused to name the thief.
As to counts 2 and 3, in August 2003 a business in Prospect Vale was broken into and a wall safe and a trolley were stolen. The safe contained $3,504.80. In September 2003, the appellant told police that a person named Thompson owed him $300 for drugs. The appellant had known about the potential for the burglary and gave the information to Thompson, at the same time wiping Thompson's drug debt. The appellant also gave the information to a third party who physically committed the burglary and stealing. In exchange for the information the appellant got $500. The appellant was charged with the offences on the basis he instigated the crimes. The appellant refused to tell police who the thief was or what became of the safe.
As to count 4, on 15 September 2003, premises at a retirement village in South Launceston were broken into and a safe containing $25,623.34 stolen. On 30 September, the appellant told police he received a call to collect the people who physically stole the safe, he collected them at Longford, took them to another part of Longford and there worked on the stolen safe for about 10 minutes to try to get it open using tools he had previously bought for the purpose. The appellant left the area before the safe was opened but returned, by which time it was open. He received $500 for his efforts. He refused to tell police who the persons were who actually stole the safe.
In February 2005, another person pleaded guilty to the theft of the money in the safe and the damage caused. He was sentenced on the basis that he did not physically take part in the break-in and theft of the safe, but had later met up with the thief at Longford who had the safe and helped open it with a crowbar. He received none of the contents. He was 29 years old and had a conviction for stealing 10 years before. He was sentenced to 9 months' imprisonment with three months suspended.
Counsel's submission was that these facts demonstrated the appellant's involvement in these matters was only ever on the periphery and that this had not been recognised in the sentencing process. The learned sentencing judge said that while some of the facts were somewhat unbelievable, he was obliged to accept them for sentencing purposes. He found the appellant plainly had a close association with criminals who burgled and stole safes, a finding which was clearly open to him on the facts presented. There was no suggestion the learned sentencing judge made any error in his summary of the facts. He was clearly aware of the appellant's role.
With respect, to describe the appellant's role as being peripheral in all these matters is being somewhat disingenuous. The appellant obviously had an association with the people who physically carried out the burglaries and thefts, and anticipated he would benefit to a far greater degree than he did. In respect of counts 2 and 3, absent his information about the potential for the crimes, they may never have occurred. As to count 1, his possession of the safe may only have been brief. However he was still involved in an activity which he no doubt anticipated would provide him with a reward.
Appellant's plea of guilty
The learned sentencing judge accepted that the pleas of guilty were mitigatory factors.
Appellant's co-operation and admissions
The learned sentencing judge accepted that the appellant's admissions were a mitigatory factor. He accepted the appellant provided most of the factual information which formed the basis of the charges. Counsel for the accused submitted the level of the appellant's co-operation with police was obvious.
However, what must be balanced against the admissions the appellant made is that the appellant declined to name principal players in any of the criminal activities which gave rise to the charges against him. His level of co-operation was therefore limited.
Appellant's lack of significant prior record
The learned sentencing judge noted a history of dishonesty offences, in particular convictions for three burglaries, three stealings and two motor vehicle stealings in 1995 and a conviction in August 2003 for a stealing in May 2002. Counsel did not define what he meant by "significant" prior record. Certainly the appellant's relevant record is not long. However it is such that it demonstrates an involvement in crimes of dishonesty and a willingness to continue offending even after a very recent conviction. I refer to the August 2003 conviction for stealing and the further offending only weeks later.
As to drug related matters, the only one of relevance was a conviction for possession of a prohibited substance in 1995.
Trafficking charge
Counsel for the appellant conceded that what was found by police when they searched the appellant's home on 29 September 2003 might have been sufficient to charge him with this crime absent admissions. However, he submitted that the extent of the crime was unlikely to have been made known without the admissions.
In this case the appellant admitted to profiting to the extent of some $166,000 from sales of about $250,000. He admitted to buying and then on-selling marihuana over a two year period and using profits to buy things for himself. He was not a user, but in the learned sentencing judge's view "a major supplier" and "in it for the profit", findings not disputed by the appellant. The sums involved demonstrate this was a serious case of trafficking.
Counsel made reference to some previous sentences of the Court for trafficking and the money involved in those cases which in one instance was greater than in the present case. However, he conceded these sentences were not of any great use to the Court.
Totality principle
The final matter raised by counsel for the appellant was the totality principle. He submitted that the sentences of two years' imprisonment for each of the categories of offending with the order they be served cumulatively did not give effect to that principle. He referred to Professor Warner's text Sentencing in Tasmania, 2nd ed, at par9.409 where the learned author outlines and comments upon the application of the principle.
The learned sentencing judge did not specifically refer to the application of the principle. However that does not mean he did not have regard to it. He was told that before the appellant was sentenced for these crimes, he had served three months in prison for an indecent assault. However, at the time he committed these crimes the appellant had not served any time in prison. His Honour noted that and said that he hoped the appellant would learn a lesson from the sentence imposed by him. He also, while making the two sentences of two years each cumulative, allowed for the shortest possible non-parole period he could, ensuring that, in appropriate circumstances, the appellant might only serve two years in all.
The learned sentencing judge, in my view, considered the need for personal deterrence and the impact on the appellant of the cumulative sentences. He dealt with the last issue by the allocation of the short non-parole period.
Conclusion
The obligation is on the appellant to demonstrate error by the learned sentencing judge. It is not sufficient to raise the possibility that the sentence imposed might be on the high side and that another judge might have imposed another sentence. I am of the view the appellant has not discharged his obligation to satisfy the Court the sentence imposed was manifestly excessive.
I would dismiss the appeal.
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