Omar, O. v Lanham, G.E

[1985] FCA 598

Re: OMAR OMAR
And: GEOFFREY EDWARD LANHAM
No. ACT G38 OF 1985
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies J.
Kelly J.
Beaumont J.

CATCHWORDS

Criminal Law - appeal on sentencing - whether lack of parity of sentences - weight to be given to sentence imposed by magistrate - "principle" that minimum sentence possible should be imposed - weight to be given to family circumstances of appellant.

Statute - s.17A(1) Crimes Act, 1914 directory not mandatory provision.

Crimes Act, 1900 (N.S.W.) in its application to the Australian Capital Territory ss.188, 477.

Crimes Act, 1914 s.17A

Attorney-General (N.S.W.) v. Dawes (1976) 1 N.S.W.L.R. 242

House v. The King (1936) 55 C.L.R. 499

R. v. Tait & Bartley (1979) 24 ALR 473

Lowe v. R. (1984) 54 ALR 193

Shannon (1979) 21 S.A.S.R. 442

Schumacher (1981) 3 A.Crim.R 441

R. v. J (1982) 49 ALR 376

Whittaker v. The King (1928) 41 C.L.R. 230

The Queen v. Wirth (1976) 14 S.A.S.R. 291.

HEARING

CANBERRA
#DATE 26:11:1985

ORDER

The appeal be dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

The appellant, Omar Omar, appeals against a sentence of nine months' imprisonment imposed by the Supreme Court of the Australian Capital Territory on 11 July 1985.

On 24 November 1983, on the information of the respondent, Geoffrey Edward Lanham, an officer of police, the appellant was charged under s.188 of the Crimes Act, 1900 (N.S.W.) in its application to the Territory ("the Act"). That provision has since been amended but at the date of the offence charged it read:

"188. Receiving where principal quilty of felony. Whosoever receives any property, the stealing whereof amounts to felony, knowing the same to have been stolen, shall be guilty of felony, and may be indicated, either as an accessory after the fact, or for a substantive felony, and in the latter case whether the principal felon has been previously tried or not, or is amenable to justice or not, and in either case shall be liable to penal servitude for ten years."

The charge was that between 24 December 1982 and 13 March 1983, the appellant did receive a turntable, an amplifier, a tuner, a cassette deck and an equaliser ("the sound equipment") the property of James David Bourke Young, before then stolen, and that when he received the sound equipment, he knew the same to be stolen. The charge was dealt with summarily pursuant to s.477 of the Act. By s.477(2), the maximum penalty for an offence dealt with pursuant to s.477(1) is imprisonment for a term not exceeding two years or a fine not exceeding $2,000.

On 31 July 1984, the appellant was convicted of the offence charged by Mr. Nicholl, S.M. The learned Magistrate, acting pursuant to s.556B of the Act, without passing sentence, ordered that the appellant enter into a recognizance in the sum of $500 to be of good behaviour for two years and ordered him to pay a penalty of $500 to the Commonwealth.

The appellant appealed to the Supreme Court against the conviction. The appeal was dismissed and the learned Judge imposed a fresh sentence of nine months' imprisonment. It is common ground that it was within the powers of the Supreme Court to do so although the maximum penalty was the same as where the charge had been dealt with summarily (see Attorney-General (N.S.W.) v. Dawes <1976> 1 N.S.W.L.R. 242). The appellant's contentions, shortly stated, are that the learned Judge erred in imposing a custodial sentence at all; and that, in the circumstances, the sentence was manifestly excessive.

The Crown case was that one Unwin stole the sound equipment after breaking and entering Mr. Young's home on 28 December 1982. Shortly thereafter, according to Unwin, whose evidence the learned Judge accepted, he was introduced to the appellant through a mutual friend. Unwin, who wanted funds to support a heroin habit, asked the appellant whether he was interested in buying "a stereo." A price of $200 was agreed. (Mr. Young had paid $1,500 for the sound equipment a year earlier.) According to Unwin's evidence, in response to an enquiry from the appellant, Unwin confirmed that the goods had been stolen. The appellant then asked from where they had been stolen. Unwin said: "From Sydney." The appellant responded:

"Well . . . as long as it is not stolen locally."

The Crown case was that the appellant then paid Unwin $200 for the equipment.

The appellant, when questioned about the stolen goods by the police in 13 March 1983, gave a very different version of the events. He claimed that the equipment belonged to his then de facto wife, Miss Victoria Rushton, and that he had given it to her as a present. He then asserted that he had bought the equipment from a friend for $600. When asked to produce a receipt, he then confessed that he had lied and that he had bought the equipment after reading an advertisement in a newspaper. He then claimed that the owner wanted $1,000 but that he was prepared to sell for $600 because he was going overseas. The appellant then attempted to suggest that he had lost the receipt. He denied knowing Unwin and contradicted entirely Unwin's version of their transaction.

Notwithstanding these assertions to the police, in his evidence before the learned Judge, the appellant acknowledged that he had dealt with Unwin; but he maintained that Unwin had said that he was forced to sell because he was going on a holiday. The suggestion was that, in effect, Unwin was obliged to accept $600 notwithstanding that the value of the equipment may have been as high as $1,400. The appellant also claimed that he had paid the $600 in cash to Unwin in the presence of Miss Rushton.

On 19 June 1985, the learned Judge dismissed the appeal against the conviction. His Honour said that he was satisfied, beyond reasonable doubt, that he should accept Unwin's evidence as credible and should reject the appellant's version of events.

Since the appeal was by way of a full re-hearing, the learned Judge heard evidence and received submissions on penalty. In this connection, a report on the appellant's antecedents disclosed that he was born in Lebanon in May 1956. One of seven children, he left school at 11 years. After working with his father on a farm, he was employed at a garage as a spray painter. The family apparently lost their possessions as a result of the war in Lebanon and this prompted their migration to Australia in December 1976. Soon after his arrival in Melbourne, the appellant gained employment as a spray painter with a motor vehicle manufacturer. Approximately two and a half years later, he and some other workers were retrenched. He then obtained work as a packer at a tyre factory but ill-health soon forced his resignation. He has not worked in any full-time occupation since then but has received unemployment benefits.

In 1978 or early 1979 the appellant formed a de facto relationship with Miss Rushton. In 1981, they moved to Canberra where they occupied premises leased to her. Four children have been born of their relationship, but the appellant was making no contribution to their support at the time of being sentenced. In May 1985 Miss Rushton separated from the appellant.

According to the appellant's antecedents report, which was admitted into evidence on the sentence without objection, in recent years the appellant had received some earnings from casual employment at a discotheque and at a coffee lounge; he had gambled on cards and horses with mixed success; he had become "well known" to the Territory police, particularly those attached to the Criminal Investigation Branch and the Drug Squad.

The appellant's criminal history showed a number of convictions. In 1979 he was convicted of possessing indian hemp and in 1981 he was convicted of smoking it. On 31 July 1984 a conviction was recorded for possessing heroin and for possessing cannabis resin between 24 December 1983 and 6 July 1984. On 19 October 1984, the appellant was convicted of supplying cannabis resin on 7 July 1983. He was then sentenced to four months' imprisonment but the operation of the sentence was suspended on certain conditions. Earlier, on 17 June 1983, the appellant was convicted on a charge of larceny and fined $200. The offence, committed in November 1982, involved stealing $1,900 from the change table of the coffee lounge where he was then casually employed.

On 25 November 1983, Unwin was convicted of his burglary on 28 December 1982. As it happened, he also was dealt with by the learned Judge. He was sentenced to six months' imprisonment but the operation of his sentence was suspended upon certain conditions. Unwin was also ordered to pay restitution of $1,000.

In sentencing the appellant to nine months' imprisonment on 11 July 1985, the learned Judge referred to the appellant's employment record and his criminal history. He then proceeded:

"They are very substantial matters for a person who has only been in the country less than 10 years, indeed about 8-1/2 years. I have been furnished with information as to the prevalence of the offence of house breaking and this of course was a sequel to such an offence.

The man Unwin broke and entered a house at Dickson and stole this property - or the property the subject of this charge, and other property, and of course, it is an old, trite saying: that without receivers there may be no principal offenders - or original offenders. I announced yesterday that I, in any event, would take judicial notice of the very high prevalance of house breaking, and it seems to me that this is a related offence, being an offence being committed as a consequence of one such offence.

I have given earnest consideration to the submissions made by counsel for the appellant. I do not purport to recapitulate all of those submissions but, dealing with some of them, I bear in mind that the original thief was given a suspended sentence by me, and when he appeared for sentence in this court, that the learned Stipendiary Magistrate recorded the conviction against the - this appellant for this offence but released him on a two year bond and ordered that he pay a penalty of $500; that this particular offence was not the result of widespread activity; and that the immediate beneficiary of the offence was the appellant's de facto wife rather than himself. I qualify my approach to that submission somewhat by the fact that he was sharing the home with the de facto wife so it seems it be a matter for their mutual benefit.

I accept that the property was, at the time of the offence, valued in the order of $1000, maybe a bit more but it is reasonable to accept the submission that the approximate value was $1000. I agree that the appellant did not encourage the commission of the original offence so that he could receive the property. I take account of the fact that the appellant has four children from his relationship with his de facto wife, three of those are now in Marymead Children's Home, and a two year old, who is apparently suffering some major illness, is with the appellant's parents in Melbourne.

The fact is, however, and it is not disputed, the appellant makes no contribution to the support or welfare of any of those children. In all the circumstances I propose to impose a gaol sentence."

The primary attack on the sentence imposed by the learned Judge is based on what is contended to be a lack of parity in the sentences of Unwin and the appellant. It is submitted that the appellant's conduct as the receiver was less culpable than that of Unwin as the housebreaker. Reference was made to the fact that the maximum penalty in the case of receiving was 10 years' imprisonment whereas this housebreaking, a burglary, attracted a maximum term of 14 years. It was put that the appellant, as a casual handler, might well expect to receive only a fine (see D.A. Thomas, Principles of Sentencing, 2nd ed. at pp.169-170.)

An appeal against a discretionary order by way of sentence is necessarily limited in its scope (see House v. The King (1936) 55 C.L.R. 499 at pp.504-5; R. v. Tait & Bartley (1979) 24 A.L.R. 473 at p.476.) When a challenge to a sentence is mounted on disparity grounds, the appellant will often face the insuperable difficulty that, although when all things are equal, parity of sentencing may well be appropriate, it is rarely that all things are, in truth, equal (see Lowe v. R. (1984) 54 A.L.R. 193 at p.194.) In the case of Unwin, mitigating factors were that, except for one conviction in March 1979 for possessing and smoking indian hemp, he had no prior convictions; he had agreed to co-operate with the police (cf. Shannon (1979) 21 S.A.S.R. 442; Schumacher (1981) 3 A.Crim.R. 441) and he was a confirmed heroin addict for whom an immediate commitment to custody may have posed special problems. Putting aside for the moment the suspension of Unwin's sentence, the difference in the sentences of six and nine months respectively is explicable by reference to the different antecedents of Unwin and the appellant. Moreover, given his addiction, the suspension of Unwin's sentence can be justified on the grounds of the desirability of assisting in his rehabilitation.

In all the circumstances of both offenders, we are not persuaded that a comparison of their respective sentences induces any "justifiable sense of grievance" (see Lowe, supra, per Gibbs, C.J. at p.195.) We reject this ground of appeal.

It was further submitted on behalf of the appellant that the learned Judge erred in failing to give proper weight to the fact that the learned Magistrate had imposed a non-custodial sentence. It was suggested that the learned Judge should only increase that sentence if exceptional circumstances were present. The position was said to be analogous to a Crown appeal (see R. v. J. (1982) 49 A.L.R. 376 at p.379.) In our view, the analogy suggested is not appropriate where, as here, the appellant exercises his statutory right of appeal to the Supreme Court by way of re-hearing and seeks to upset both his conviction and the sentence imposed by the learned Magistrate. It was a hearing de novo (see Petty Sessions Ordinance, 1930, s.214(2) as it then stood) so that his Honour had the considerable advantage of observing the appellant and the Crown witnesses (see Whittaker v. The King (1928) 41 C.L.R. 230 at pp.248-9.) Once the appellant elected to open up his earlier conviction and sentence, there can be no justification for fettering the sentencing discretion vested in the Supreme Court by reference to the sentence imposed by the learned magistrate.

Then the appellant complains that the learned Judge failed to observe the requirements of s.17A of the Crimes Act, 1914. By s.17A(1) it was provided that a court shall not pass a sentence of imprisonment unless, "after having considered all other available sentences, (it) is satisfied that no other sentence is appropriate in all the circumstances of the case." Where a court passes a sentence of imprisonment, it shall state the reasons for its decision that no other sentence is appropriate (s.17A(2)(a)). However, s.17A(3), by providing that failure to observe the provisions of s.17A(1) does not invalidate the sentence, makes it clear that the section is directory rather than mandatory.

In his reasons for sentence the learned Judge did not make any explicit reference to the matters contemplated by s.17A(1) to be dealt with by the Court but the considerations envisaged by s.17A(1) were implicit in his reasoning. It is unnecessary to pursue the point since s.17A(3) puts the matter beyond argument. The appellant sought to avoid the operation of s.17A(3) by contending that he accepted that the sentence was not invalidated by failure to comply with s.17A(1). Notwithstanding this, he maintained that the learned Judge's failure to advert to the matters mentioned in s.17A(1) in some way vitiated his process of reasoning.

The submission must be rejected. His Honour's processes of reasoning are, of course, open to challenge on the well established grounds appropriate in the case of an appeal against the exercise of the sentencing discretion (see House, supra; Tait and Bartley, supra.) However, given the merely directory character of s.17A(1), it would be wrong to override s.17A(3) by the back door by allowing an appellate challenge on the ground, additional to the traditional grounds, that the dictates of s.17A(1) were not observed.

Next, it was submitted that the sentence imposed was not consistent with what was said to be the "principle" that the minimum sentence possible in the circumstances should be imposed (see Webb v. O'Sullivan (1952) S.A.S.R. 65 at p.66). But in the present case, it does not appear that the learned Judge imposed a sentence that was any greater than was necessary properly to reflect the gravity of the crime and the antecedents of the appellant.

In our view, the term of nine months was within the permissible limits of the trial Judge's discretion and the matters taken into account by his Honour were properly the subject of his consideration.

Finally, an attempt was made by the appellant to adduce fresh evidence on the appeal in respect of his present family situation. The appellant was released on bail pending his appeal and it appears that, in the interim, he has, with the assistance of his mother, looked after three of his children. Further, in October, he and Miss Rushton apparently resumed co-habitation.

In our opinion, for the reasons explained by Bray, C.J. in The Queen v. Wirth (1976) 14 S.A.S.R. 291 at pp.293-4, it is not appropriate for us to give this material any real weight in the absence of exceptional circumstances and none are present here. In short, the appellant "cannot . . . . compound for his own demerits by another's merits" (per Bray, C.J. at p.293.)

The appeal must be dismissed.