R v Antoniutti

[2003] QCA 360

SUPREME COURT OF QUEENSLAND

CITATION:	R v Antoniutti [2003] QCA 360
PARTIES:	R v ANTONIUTTI, Christopher Raymond (applicant/appellant)
FILE NO/S:	CA No 164 of 2003 DC No 213 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Townsville
DELIVERED EX	21 August 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2003
JUDGES:	McMurdo P, Muir and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence granted. Appeal allowed. Instead of the sentence imposed at first instance, substitute a sentence of two years imprisonment
to be suspended after serving nine months with an operational period of two years. Otherwise sentence at first instance confirmed.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where applicant convicted of property offences and sentenced to three years imprisonment – whether learned primary judge placed undue emphasis on the applicant’s failure to disclose the identity of his co-offenders – whether sentence manifestly excessive
R v B [2003] QCA 169; CA No 15 of 2003, 24 April 2003, applied R v Priman [1999] QCA 65; CA No 426 of 1998, 15 March 1999, considered R v Walters [2002] QCA 76; CA No 342 of 2001, 14 March 2002, considered
COUNSEL:	A W Moynihan for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: On the 16th of May 2003 the applicant pleaded not guilty to breaking and entering premises and stealing (count 1), wilful damage (count 2), unlawfully possessing a motor vehicle to facilitate the commission of an indictable offence with a circumstance of aggravation (count 3), and guilty to one count of stealing (count 4). On 19 May 2003 he was acquitted of the first two counts and found guilty of the third count. The learned primary Judge noted that by the end of the trial, the applicant did not contest his responsibility for count 3. On 22 May 2003 he was sentenced to three years' imprisonment on count 3 and 18 months' imprisonment on count 4 with a declaration as to presentence custody and a recommendation that he undergo a victim empathy program.

The offence of stealing concerned tools valued at $11,611.41 belonging to the owner of the motor vehicle. They were in the Toyota Landcruiser vehicle when it was taken from Ingham. It was cut up into parts at Mount Fox north-west of Townsville. It was not insured and a replacement vehicle would have cost about $20,000. The applicant cut up the vehicle with the assistance of others so that he could conceal his involvement. Only a few parts valued at about $3,000 were recovered. The tools, which were insured, were also not recovered.

The applicant contends the sentence was manifestly excessive and that the learned primary Judge placed undue emphasis on the applicant's failure to disclose what happened to the tool box and the names of his co-offenders.

The applicant was 20 years old at the time of the offences and 21 at sentence. He had a previous criminal history commencing in 1998 for unauthorised damage to property for which he was

fined $250 and ordered to pay restitution of $88.78. In 2002, he was dealt with for possession of a knife in a public place, two counts of stealing and one count of burglary. No
conviction was recorded and he was placed on probation for 18
months. He had therefore been on probation only a few weeks
when he committed these offences. In March 2003 he was dealt
with for obstructing a police officer and fined.

The report of the Community Corrections officer tendered at sentence indicated that the applicant had reported generally satisfactorily but sometimes by telephone instead of in person. He had been dealt with for breach of probation and convicted and fined $150 in respect of the March 2003 offence. The report noted that the applicant had completed the substance abuse program, generally complied with the requirements of his probation order, was currently completing his motor mechanics apprentice, and despite his re-offending could benefit from continued supervision to assist in addressing his offending behaviour.

The applicant's employer provided a reference describing the applicant as a reliable, hardworking employee, courteous to clients and vendors and very capable. The writer's belief as to the applicant's honesty and trust must be seen in the light of the applicant's involvement in these offences during which he undoubtedly dishonestly used the skills he had gained through his apprenticeship as a motor mechanic.

The Prosecutor at sentence contended that a custodial sentence was within range, although conceded that a relatively short term before suspension would be appropriate.

The learned sentencing Judge was understandably concerned at the value of the property involved, over $30,000. The applicant was not in a position to make realistic compensation. The learned primary Judge adjourned the sentence on 19 May 2003 to give the applicant the opportunity to disclose the whereabouts of the tools and implicate others who were involved with him in the destruction of the motor vehicle and the stealing of the tools. When sentencing resumed three days later, the applicant's counsel informed the Court that the applicant was unable to give that information.

Counsel have referred us to a number of comparable decisions. In R v Walters [2002] QCA 76; CA No 342 of 2001, 14 March 2002, Walters, a mature man, committed offences involving motor vehicles which constituted a systematic fraud and resulted in considerable financial gain. He was sentenced to three years' imprisonment with a recommendation for parole up to 12 months.

In R v Priman [1999] QCA 65; CA No 426 of 1998, 15 March 1999, Priman pleaded guilty to five counts of unlawful possession of a motor vehicle. The offending conduct was buying stolen

vehicles on five occasions at the request of an undercover sentence of three years' imprisonment was held to be within range.

police officer. Cars were stolen and sold for a substantial
price and the conduct amounted to an unlawful business.

In R v Proctor & Myles [1993] QCA 505; CA No 372 of 1993, 17 November 1993, Myles was 25 and Proctor 26 years old. Myles had a minor criminal history and Proctor an extensive one.

They pleaded guilty to 13 counts of unlawful possession of a
motor vehicle with a circumstance of aggravation and
associated offences involving a lucrative car stealing racket.
The sentences imposed on each were effectively four years'
imprisonment and were not interfered with. In that sentence
the Court stated it was not really disputed that the
sentencing range for offences of this kind varied from about
12 to 18 months at the lower end of the scale, to four to five
years at the upper end of the scale.
The matters of R v Williams [1994] QCA 88; CA No 467 of 1993,

7 March 1994 and R v Pignat [1995] QCA 29; CA No 446 of 1994,
20 February 1995, suggest that a single offence of stealing a
vehicle for joyriding by young offenders with previous
convictions and with the subsequent destruction of the vehicle
attracts a head sentence in the range of one to two years'
imprisonment. The property destroyed in the cases of Williams
and Pignat does not seem to have been as valuable as here.

Perhaps of more assistance is the case of R v B [2003] QCA 169; CA No 15 of 2003, 24 April 2003 where, at [26], a review of matters of this kind by the Court suggested that the appropriate range of sentencing involving only one vehicle in a commercial context is less than three years, even without the benefit of youth.

A review of these cases suggests that the learned primary offence, including the significant value of the property and that the offending occurred whilst the applicant was on probation. These factors warranted a custodial sentence but the sentence imposed does not sufficiently reflect the mitigating factors which included youth, a mildly promising report from a Community Corrections officer and a favourable reference from the applicant's employer. The applicant should also have the benefit of his early plea of guilty to the stealing charge and, of less significance, that he belatedly admitted his guilt to the unlawful use of a motor vehicle charge during the trial.

Judge appears to have placed too much emphasis on the
applicant's lack of remorse in identifying his co-offenders
and insufficient weight on the applicant's youth and perhaps
questionable but still real prospects of rehabilitation.
Because of his Honour's adjournment of the hearing to enable
the applicant to provide information about his co-offenders
and the tool box, it may well have been the applicant's
perception that his Honour imposed a heavier penalty because
of the applicant's failure to provide this information.

Weighing up the competing factors and after reviewing a wide range of like sentencing matters, I am satisfied the learned Judge imposed a sentence which was manifestly excessive.

I would grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence of three years' imprisonment imposed at first instance,

substitute a sentence of two years' imprisonment to be
suspended after serving nine months with an operational period
of two years. I would otherwise confirm the sentence at

first instance.

MUIR J: I agree. order available, given the youth and apparent foolishness of the appellant, but it is to be hoped he is acutely aware of the consequences of breaching a suspended sentence and that discourages any re-offending.

THE PRESIDENT: The orders are as I have proposed.