Pauly and Silva v The Queen

[2004] TASSC 140

[2004] TASSC 140

CITATION:            Pauly and Silva v R [2004] TASSC 140

PARTIES:  PAULY, Damian Kenneth
  SILVA, Craig Raymond
  v

R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 33/2004

CCA 34/2004

DELIVERED ON:  3 December 2004
DELIVERED AT:  Hobart
HEARING DATES:  1 November 2004
JUDGMENT OF:  Slicer, Evans and Blow JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial - Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – Generally – Burglary and stealing – Whether manifestly excessive.

Aust Dig Criminal Law [1009]

REPRESENTATION:

Counsel:
           Appellants:  In Person
           Respondent:  D G Coates SC
Solicitors:
           Appellants:  In Person
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2004] TASSC 140
Number of Paragraphs:  

Serial No 140/2004
File Nos CCA 33/2004

CCA 34/2004

DAMIAN KENNETH PAULY and CRAIG RAYMOND SILVA
v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
EVANS J
BLOW J
3 December 2004

Order of the Court

Appeals dismissed.

Serial No 140/2004
File Nos CCA 33/2004

CCA 34/2004

DAMIAN KENNETH PAULY and CRAIG RAYMOND SILVA
v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
3 December 2004

1. The appellants seek review of sentences of imprisonment of three years imposed on each for the crimes of burglary, stealing, attempted stealing and injury to property, and an additional cumulative sentence of two months' imprisonment imposed on Pauly for the crime of aggravated assault.  A non-parole period of two years was fixed with respect to Silva, and one of two years one month for Pauly, which reflected the additional crime.

1. In all other respects the appellants were treated alike, with the learned sentencing judge stating:

"For the purpose of imposing sentence I draw no distinction between you.  There is little of anything to be said by way of mitigation.  All three criminal episodes were clearly planned.  Their execution caused considerable unnecessary damage and constituted a blatant disregard to the rights and feelings of the property owners.  It appears from your conduct that you made a decision to become professional criminals and, consequently, you will have to be dealt with as such.  In your case Pauly, additional sentence will be imposed to make it clear that the authority of police officers will be upheld when they are acting in the lawful execution of their duty."

1. Each appellant had a significant record of criminal and antisocial conduct.  Pauly, now aged 24, had, at the time of sentence, 17 convictions for crimes of dishonesty, one for injury to property and four involving violence or threatened violence to the person.  Silva, aged 21, had 21 convictions for crimes involving dishonesty, two for injury to property and a large number of convictions for driving offences, including many for driving whilst disqualified.  Both appellants had previously been to prison.

1. The crimes for which the appellants were sentenced following trial, involved the burglary and theft from three commercial premises, two pharmacies and a newsagency, between 26 April and 2 May 2003.  A degree of professionalism, the term being relative, was employed in the burglaries and significant damage caused to the premises.  Pauly punched and kicked an arresting officer in an attempt to escape following detection at the third scene.

1. The crimes were preplanned, followed reconnaissance and were committed over a six day period at three disparate locations.

1. As the learned sentencing judge observed, there was little to be said by way of mitigation.  The appellants were not entitled to the utilitarian benefit of a plea of guilty.  Significant damage had been caused to the premises entered.  The ground of appeal relied upon by each appellant was that "the sentence was manifestly excessive in all the circumstances of the case".  The nature of each crime, its repetition and the record of each appellant show that the sentence in each case was well within the permitted range.  Neither ground ought be sustained.

1. I would propose that the appeal in each case be dismissed.

   File Nos CCA 33/2004

   CCA 34/2004

DAMIAN KENNETH PAULY and CRAIG RAYMOND SILVA
 v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  EVANS J
  3 December 2004

1. I agree with the reasons for judgment prepared by Slicer J and would dismiss each appeal.

   File Nos CCA 33/2004

   CCA 34/2004

DAMIAN KENNETH PAULY and CRAIG RAYMOND SILVA
v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
3 December 2004

1. I agree with Slicer J.