Lynch v Bowers
[2002] WASCA 168
•24 JUNE 2002
LYNCH -v- BOWERS & ANOR [2002] WASCA 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 168 | |
| Case No: | SJA:1026/2002 | 4 JUNE 2002 | |
| Coram: | WHITE AUJ | 24/06/02 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | COLIN JOHN LYNCH MICHAEL GEOFFREY BOWERS SIMON DAVID HARRISON |
Catchwords: | Appeal against a sentence of 12 months' imprisonment imposed on each of 10 counts of receiving stolen property knowing it to have been stolen, the sentences to be concurrent, and of 6 months' imprisonment on one count of having in possession a Honda motor cycle reasonably suspected of having been stolen or unlawfully obtained, such sentence to be cumulative on the sentences for receiving The offences of receiving having been committed on three separate occasions Whether the sentences were manifestly excessive in the circumstances Whether the fact that the appellant acquired the goods in question for his own use and not for resale was significant |
Legislation: | Nil |
Case References: | Burns (1994) 71 A Crim R 450 Dinsdale v R [2000] 175 ALR 315 Liu (1989) 40 A Crim R 468 Quinn v R, unreported; CCA SCt of WA; Library No 930709; 10 December 1993 R v Ligginton (1997) 18 WAR 394 Verschuren v R; unreported; CCA SCt of WA; Library No 960618; 31 October 1996 Grimshaw v R [2001] WASCA 427 Hodges v Hagan [2001] WASCA 41 Lowndes v R (1999) 173 ALR 483 O'Gorman v R, unreported; CCA SCt of WA; Library No 980744; 18 December 1998 Vickers v Bailey [2000] WASCA 136 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHAEL GEOFFREY BOWERS
First Respondent
SIMON DAVID HARRISON
Second Respondent
Catchwords:
Appeal against a sentence of 12 months' imprisonment imposed on each of 10 counts of receiving stolen property knowing it to have been stolen, the sentences to be concurrent, and of 6 months' imprisonment on one count of having in possession a Honda motor cycle reasonably suspected of having been stolen or unlawfully obtained, such sentence to be cumulative on the sentences for receiving - The offences of receiving having been committed on three separate occasions - Whether the sentences were manifestly excessive in the circumstances - Whether the fact that the appellant acquired the goods in question for his own use and not for resale was significant
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr D D Barker
First Respondent : Mr P Dixon
Second Respondent : Mr P Dixon
Solicitors:
Appellant : Director of Legal Aid
First Respondent : State Director of Public Prosecutions
Second Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Burns (1994) 71 A Crim R 450
Dinsdale v R [2000] 175 ALR 315
Liu (1989) 40 A Crim R 468
Quinn v R, unreported; CCA SCt of WA; Library No 930709; 10 December 1993
R v Ligginton (1997) 18 WAR 394
Verschuren v R; unreported; CCA SCt of WA; Library No 960618; 31 October 1996
(Page 3)
Case(s) also cited:
Grimshaw v R [2001] WASCA 427
Hodges v Hagan [2001] WASCA 41
Lowndes v R (1999) 173 ALR 483
O'Gorman v R, unreported; CCA SCt of WA; Library No 980744; 18 December 1998
Vickers v Bailey [2000] WASCA 136
(Page 4)
1 WHITE AUJ: This is an appeal pursuant to the provisions of the Justices Act against the sentences imposed upon the appellant on 1 February 2002 in the Court of Petty sessions at Bunbury, following his pleas of guilty to ten counts of receiving property that had lately been stolen as he then well knew and one count of having in his possession a Honda motorcycle, reasonably suspected of being stolen or unlawfully obtained. The receiving charges related to three separate occasions when the same two young men approached the appellant and offered him the stolen goods, for which he paid a total of $400.00. The value of the goods received exceeded $7,000.00. The learned Magistrate imposed a sentence of 12 months' imprisonment on each of the ten counts of receiving, to be served concurrently, and six months on the count of possession, to be served cumulatively. In the result the appellant was sentenced to a total of eighteen months' imprisonment and was made eligible for parole.
2 The appellant appeals on the ground that the sentences imposed were manifestly excessive and particulars that ground as follows:
(i) The appellant pleaded guilty at the first reasonable opportunity;
(ii) The appellant assisted the arresting officers significantly in relation to their enquiries;
(iii) The appellant's criminal record was not significant;
(iv) The circumstances in which the offences were committed; and
(v) The appellant's personal circumstances called for a more lenient sentence.
3 The appellant contends that the learned Magistrate erred in law in the exercise of his sentencing discretion by:
(i) Failing to consider (or adequately consider), the circumstances in which the appellant committed the offences;
(ii) Failing to consider (or adequately consider), the appellant's personal circumstances;
(iii) Taking into account irrelevant considerations; and
(iv) Incorrectly applying s 6(4) or s 39(3) of the Sentencing Act 1996 and the sentencing principles established by Dinsdale v R [2000] 175 ALR 315.
(Page 5)
4 In support of those grounds, the appellant made the following submissions:
"The Offences and the Sentence
1. As can be seen from the Transcript of Proceedings for 11 January 2002 ('the JT') at pages 21-23 of the Appeal Book ('AB'), the Appellant entered pleas of guilty to ten counts of Receiving and one count of Unlawful Possession on 11 January 2002 before his Worship Magistrate Packington SM. A plea in mitigation was presented on the Appellant's behalf and Counsel for the Appellant made recommendations that he be placed on either a Community Based Order, or an Intensive Supervision Order (refer page 29 of the AB). The prosecution did not challenge the recommendations by Counsel, and His Worship Magistrate Packington SM adjourned the matters to 1 February 2002 for the purpose of a presentence report to be obtained. The Appellant was released to bail until 1 February 2002.
2. On the 1st February 2002, the Appellant appeared before his Worship Magistrate Fisher SM. A plea in mitigation was presented by Counsel for Appellant and the Learned Magistrate sentenced the Appellant having:
a) Accepted that the 10 counts of Receiving occurred over 3 incidents between 26 October 2001 and 13 November 2001 in which the Appellant acquired property in circumstances where he had constructive as opposed to actual knowledge that the property was stolen (or unlawfully obtained as the case may be). In any event this fact was not disputed by the prosecution (refer transcript of proceedings for 1 February 2002 at page 35 of the AB).
b) Accepted that the property was acquired for the benefit of the Appellant and his family because of his financial circumstances (refer AB pages 37, 42 and 45). This fact was not disputed by the prosecution (refer the AB at page 42 and 45).
(Page 6)
- c) Stated 'the information before me suggests this gentleman is the fence. And if he's the fence, he'll be jumping the fence' (refer page 36 para 20 of the AB);
d) Found that the Appellant was not fencing the property (refer AB page 44 at para 50);
e) Been made aware that at the time the Appellant was the father of three children by birth, and was acting as de-facto parent to a thirteen year old not his own child (refer Pre Sentence Report and AB at page 44 at para 40), and had work available to him in Esperance tree pruning (refer AB at page 44 at para 50).
- 3. His Worship Magistrate Fisher SM sentenced the Appellant to 12 month's imprisonment in respect of each of the Receiving charges each made concurrent one with the other. In respect of the Unlawful possession charge, the Appellant was sentenced to 6 months imprisonment cumulative on the 12-month terms. In respect of each sentence, the Appellant was made eligible for Parole (refer to page 47 para 40 of the AB).
4. On 1 March 2002, His Honour Justice Pullin granted the Appellant Leave to Appeal and Bail – refer to page 1 of the AB.
Grounds of Appeal
5. The Appellant seeks to raise two grounds of appeal. The first ground asserts that the Sentences imposed by the learned Magistrate were manifestly excessive, an express ground of appeal.
- 6. The second ground of appeal states that the Learned Magistrate erred in law in the exercise of his sentencing discretion. This is an express ground of Appeal.
(Page 7)
- Manifestly Excessive - Legislation
7. The Learned Magistrate did not state in his reasons, and it cannot be inferred from his reasons or the nature of the offences taken on their own, that he applied the principle that a court must not impose a sentence of imprisonment on an offender unless it decides that:
a) The seriousness of the offence is such that only imprisonment can be justified; or
b) The protection of the community requires it.
- 8. The Learned Magistrate was obliged to satisfy himself that no other sentencing options were available to him other than imprisonment.
- Manifestly Excessive - Cases
9. To succeed on this ground, the Appellant must establish that there has been some error of principle which caused the discretion of the sentencing Judge to miscarry.
Dinsdale –v- R (2000) A Crim R 558 per Gleeson CJ and Hayne J at 561
10. Sections 6(4) and 39(3) of the Sentencing Act 1995 establish a regime whereby the court is obliged to eliminate all other alternatives to imprisonment before imposing such a sentence. A court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the Act.
Dinsdale –v- R (supra) per Gleeson CJ and Hayne J at 562
11. In any event, although a significant consideration, rehabilitation is not the sole basis for suspending a term of imprisonment.
(Page 8)
- Dinsdale –v- R (Supra) per Gleeson CJ and Hayne J at 564
- 12. The prospects of rehabilitation and reform must be weighed against other important factors including the seriousness and intrinsic character of the offences.
Vickers –v- Bailey (2000) WASCA 136 at para 15 per Miller J approving Ogorman v R, unreported, CCA SCt of WA Library No 980744 per Anderson J at page 11.
Errors of Law
13. The Learned Magistrate erred in principle (and therefore erred in law), by viewing imprisonment as the starting point for the sentencing process contrary to sections 6(4) and 39(3) of the Sentencing Act.
- 14. The Learned Magistrate did not consider whether or not general and personal deterrence could be addressed by other sentencing options including a suspended sentence (refer page 47 of the AB para 30).
15. A sentence of a suspended term of imprisonment has a general deterrent value.
Hodges v Hagan [2001] WASCA 41 at para [25 and 26] See also Grimshaw v R [2001] WASCA 427 at para [23 and 24]
APPLYING THE LAW TO THE FACTS
16. The Learned Magistrate did not credit the Appellant with:
a. his early plea of guilty;
b. the fact that the Appellant had disclosed to Police and the Court the name of the suppliers of all property he received or unlawfully obtained.
c. the absence of property offence convictions for approximately 8 years;
(Page 9)
- 17. The Learned Magistrate:
d. Insufficiently weighted the value of Appellant's assistance to the police in respect of the receivings and unlawful possession. As a matter of sentencing principle, any assistance with police is a mitigating factor. Any further attempt to locate the owner of the vehicle would have increased the Appellant's mitigation. A failure to do so in circumstances where experts (the police) have information concerning the offender cannot be said to reduce the mitigation due to the Appellant as the magistrate has sought to do at page 40 and 46-47 of the AB.
e. Ignored the fact that the defendant had pleaded guilty to the unlawful possession charge thereby accepting that there was a reasonable suspicion that the property had been stolen (refer page 47 of the AB).
f. Inappropriately weighted particular and general deterrent factors against:
i. The fact that the Appellant 'might well benefit from a period of supervision' (refer page 47 of the AB);
ii. The impact that a term of imprisonment would have on his family;
iii. The motive for and circumstances of the offences;
iv. The absence of relevant recent criminal history;
v. The availability of employment to the Appellant.
vi. The remorse and contrition demonstrated by the Appellant
(Page 10)
- All of which may be taken into consideration when applying the sentencing principles set out in the Sentencing Act 1995.
Dinsdale –v- R (Supra) per Kirby J at 68 and 85
- INCONSISTENCY BETWEEN FINDINGS AND UNDISPUTED FACTS
18. The Learned Magistrate stated, 'if [the Applicant is] the fence he'll be jumping the fence' (at page 36 of the AB para 20). He then found that because he was not 'fencing off the property, or pawning it' to provide for his family, that the cause for the offending was 'not a financial matter' (refer to page 44 (at para 50 to page 45 at para 10 of the AB) and imposed a term of imprisonment to be immediately served. These findings were:
a. Logically flawed, on the bases that;
i) the property was acquired 'for the purpose of providing the family with some facilities and potentially to be used for work' because of their financial position; as was submitted by Counsel (at page 45 of the AB) – a fact that was not disputed by the Prosecution or rejected by the Learned Magistrate; and
ii) the Learned Magistrate initially indicated that the Appellant would be imprisoned if he was 'fencing' the property, (it being implicit from the statement that he would not be imprisoned if he was not fencing the property) and then sentenced the Appellant to a term of imprisonment notwithstanding that there was no evidence that he was fencing the property;
b. Against the weight of material before the Learned Magistrate that was not disputed
(Page 11)
- once expanded upon (refer page 45 at para 30 of the AB);
- MISCARRIAGE OF THE SENTENCING DISCRETION
19. Had the Learned Magistrate;
a) Correctly applied s.6(4) and 39(3) of the Sentencing Act;
b) Considered the matters referred to in points 16 and 17 above;
c) Made findings consistent with the undisputed facts; and/or
d) Correctly weighted the general deterrent value of a suspended term of imprisonment;
- He would have found that imprisonment was not the only appropriate sentencing disposition, and further that the Appellant was an appropriate candidate for an Intensive Supervision Order or a Suspended term of Imprisonment if the need for general deterrence was a sufficiently relevant consideration."
6 The maximum penalty applicable to each offence was a term of imprisonment for two years. If it were not for the fact that receivers of stolen property are prepared to pay thieves for the objects that they steal, it is likely that the offences of burglary and stealing would be far less prevalent that they are at present.
7 So persons who are acting as receivers and are apprehended in so doing must be viewed as committing extremely serious offences: Quinn v R, unreported; CCA SCt of WA; Library No 930709; 10 December 1993 at 6.
8 In relation to ground 1(a)(i), the appellant first appeared in the Bunbury Court of Petty Sessions on 26 November 2001 in respect of the ten offences of Receiving and on 30 November 2001 in respect of the offence of Unlawful Possession. Thereafter, he appeared on 10 December
(Page 12)
- 2001, 21 December 2001 and 14 January 2001, when he entered pleas of guilty to the charges.
9 The learned sentencing Magistrate was aware that the appellant had entered pleas of guilty to the charges [AB 32 para 30].
10 An early plea of guilty may justify a substantial discount of up to 25 per cent (or even greater) depending on the individual circumstances of the case. A sentencing Magistrate is not required to adopt a two tier approach, albeit that such an approach is helpful: Verschuren v R; unreported; CCA SCt of WA; Library No 960618; 31 October 1996.
11 The maximum penalty which might have been imposed by the learned Magistrate was imprisonment for two years on each count. Assuming that the learned sentencing Magistrate allowed a discount of 25 per cent, the sentence imposed indicates a starting point of 16 months for each offence of Receiving and 7 and a half months for the offence of Unlawful Possession. These sentences are within the range.
Ground 1(a)(ii)
12 The learned Magistrate was aware of and expressly acknowledged the co-operation by the appellant [AB 46].
Ground 1(a)(iii)
13 The appellant has numerous prior criminal convictions including two convictions for Burglary as an adult. The appellant was subject to a Conditional Release Order when the offences presently under consideration were committed. In my opinion, the appellant's prior criminal record was indeed significant and by no means in his favour.
Ground 1(a)(iv)
14 The offences of receiving are serious and the appellant offended on three separate occasions. The fact that the appellant was motivated by a desire to acquire the property purchased by him for use in his home as opposed to its acquisition for the purpose of sale was not, in my opinion, a significantly mitigating factor. The goods were not necessities of life. The stolen property consisted of three jarrah picture frames, valued at $300.00, an 8-horsepower Johnson engine, valued at $500.00, a portable barbecue valued at $100.00, an antique grandfather clock, a Reece tow-hitch, diving flippers, mask and goggles, an assortment of camping gear and air tools valued at approximately $1,700.00, a TEAC television set, an Akai video recorder, valued at $800.00, a refrigerator, a generator, three microphones, an assortment of sundry Speedway stickers and caps, valued at $1,700.00,
(Page 13)
- a portable arc-welder, valued at $1,200.00, an air-operated rattle gun, valued at $170.00, a Castrol spray-jacket, a pair of large bolt cutters and two metal lever bars, valued at $150.00, four pairs of shoes, one hockey glove, and one guitar valued at $650.00. For those stolen goods, the appellant paid a total sum of $400.00 (AB37).
15 As the learned Magistrate said (AB47):
"It's now well recognised as a principle of law in the sentencing process that there are significant deterrent factors to be had necessarily, if one discourages people from taking stolen property. The principle of that, of course, is that you remove the receiver. You do something towards denying the thief. If he can't get rid of the stolen property, he may not steal it. You have necessarily - - are an affront to that principle. You have encouraged, on three separate occasions, the taking of property in a 3-week period."
- Ground 1(a)(v)
16 I accept the respondent's submission that the effect of a sentence upon an offender's dependents must be truly exceptional before compassion for them can have any significant effect on sentence upon crimes such as the appellant's. In view of the seriousness of these offences, the predominant sentencing consideration is general deterrence: Burns (1994) 71 A Crim R 450. There was nothing in the personal circumstances of the appellant which the learned Magistrate overlooked or which should have required his worship to impose a sentence that was more lenient than the sentence he in fact imposed. The sentence of 12 months' imprisonment in relation to ten counts of receiving stolen property with knowledge that the property was stolen, committed on three separate occasions, was, in my opinion, undoubtedly lenient.
Ground 1(b)(i)
17 I accept the respondent's submissions that the learned sentencing Magistrate expressly took into account the circumstances in which the appellant committed these offences [AB 46 para 10 – 50] and that the appellant purchased the property relating to the 10 offences of receiving over three separate occasions for a total of $400 [AB 37 para 20]. The property purchased by the appellant was worth substantially more than this sum [AB 32-34]. The appellant purchased this property opportunistically, and with the intention of using the property himself
(Page 14)
- [AB 38 para 20]. There is nothing in these circumstances which lessen the seriousness of these offences of Receiving.
Ground 1(b)(ii)
18 The learned sentencing Magistrate properly considered the appellant's personal circumstances which included the appellant's age and poor antecedents [AB 45 para 30 – 50].
19 In relation to Ground 1(b)(iii), I accept the submissions of the respondent that in sentencing on a plea of guilty, the prosecution carries no onus of excluding beyond a reasonable doubt matters which come up in mitigation. A sentencing Magistrate is entitled to act upon probability, necessarily guided or influenced in his acceptance or rejection of particular facts by having regard to the effect they might have on sentence, and accepting, in the case of different versions of fact which have like probability, that version which is the more favourable to the accused: Liu (1989) 40 A Crim R 468 at 474.
20 The learned sentencing Magistrate was acting on probability when considering the facts upon which to sentence the appellant [AB 46-47]. In any event, the version of facts presented by the appellant is sufficiently serious enough to warrant the terms of imprisonment imposed.
21 I also accept the submissions of the respondent in relation to Ground 1(b)(iv) that:
1. The exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially to the effect which suspension would have on rehabilitation of the offender is not an appropriate approach. Rather, the same considerations that are relevant to the imposition of a term of imprisonment are to be revisited in determining whether to suspend that term: Dinsdale [2000] HCA 54 at [84] and [85] per Kirby J, Gaudron and Gummow JJ concurring at [26]; note also Gleeson CJ and Hayne J at [18].
2. Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are
• the perceived seriousness and intrinsic character of the particular offence;
(Page 15)
- • whether there is any element of persistence;
• general deterrence;
• factors personal to the offender including mitigating circumstances; and
• the need to demonstrate to the community, the condemnation of offences of that kind.
- R v Ligginton (1997) 18 WAR 394 at 406 per Steytler J.
22 There is nothing in the comment by the learned Magistrate that: 'if he's a fence, he'll be jumping the fence' to suggest that if the learned sentencing Magistrate accepted that the appellant was not 'a fence' then the seriousness of the offences committed by the appellant would not warrant a term of imprisonment.
23 The seriousness of the offences of receiving in these circumstances needs to be considered in the light of the seriousness and prevalence of burglary offences within the community.
24 I am not persuaded that a total sentence of 18 months' imprisonment with an order for eligibility for parole was manifestly excessive, particularly in view of his Worship's order that the 10 sentences of 12 months' imprisonment be concurrent with each other in the circumstances that the appellant received the stolen property on three separate occasions.
25 For the foregoing reasons, I dismiss the appeal.
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