R v B

[2003] QCA 169

SUPREME COURT OF QUEENSLAND

CITATION:

R v B [2003] QCA 169

PARTIES:

R
v
B
(applicant)

FILE NO/S:

CA No 15 of 2003
DC No 1229 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2003

JUDGES:

Williams and Jerrard JJA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant the application for leave to appeal
2. Allow the appeal
3. Set aside the sentence only to the extent of deleting the order for suspension after nine months and order that the sentence be suspended after the applicant has served four months imprisonment

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant provided substantial assistance to investigating police and gave undertakings as to future assistance – whether sentence should be reduced based solely on this mitigating factor

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of unlawful possession of a motor vehicle – where applicant intimately involved in offence – where evidence showed applicant was not expecting to gain any benefit from possessing the vehicle – where evidence showed applicant had no intention to help dispose of the vehicle – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13A

R v Hearn [1992] QCA 76; CA No 325 of 1991, 31 March 1992, distinguished
R v Kent [2000] QCA 247; CA No 418 of 1999, 19 June 2000, distinguished
R v Milner [2002] QCA 222; CA No 70 of 2002, 21 June 2002, distinguished
R v Nomikos & Luff [1999] QCA 195; CA No 98 of 1999, 27 May 1999, considered
R v Phillips [2002] QCA 97; CA No 333 of 2001, 19 March 2002, considered
R v W (2002) 129 A Crim R 400, applied
R v Webber (2000) 114 A Crim R 381, applied

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA: I agree with the reasons for judgment of Jerrard JA and with the orders therein proposed.

1. JERRARD JA: On 6 July 2000 a Scania prime mover was taken from the premises of a trucking company at Richlands.  On 15 June 2001 officers of the Queensland Police Service executed a search warrant at an address at Rochedale, where they found the prime mover in a shed on that property, which property was then being rented by an associate of the applicant B.  On 21 January 2003 Mr B pleaded guilty in the Brisbane District Court to a charge on an indictment alleging that between the 1^st day of May 2001, and the 16^th day of June 2001, he had had that motor vehicle in his possession without the consent of the person in lawful possession of it, with intent to permanently deprive its owner of the use and possession of the vehicle. After hearing submissions on sentence including submissions relevant to s 13A of the Penalties and Sentences Act 1992 (Qld), the learned sentencing judge sentenced Mr B to 18 months imprisonment, to be suspended after he had served nine months.  Mr B has applied for leave to appeal against that sentence arguing that it is manifestly excessive.

1. Mr B had participated in a record of interview on 4 July 2001.  The sentencing judge was told that Mr B was approached in late April or early May 2001 by a person named P, who told him the prime mover was stolen, and who asked him to store it.  Mr B’s answers in that interview were said by the Crown to have described his having disbelieved Mr P’s statement that the vehicle was stolen, and his having agreed to store it as requested.  He also described in that interview being asked on two occasions to see if he could locate “plates” (vehicle identification or compliance plates) which might help Mr P to supply the truck with a new (false) official identity.  Mr B admitted in that interview that he made some preliminary inquiries, but said he had been unsuccessful in obtaining any compliance plates.  It was common ground that the value of the prime mover was about $120,000.00. 

1. Mr B’s counsel at the sentence, Mr Richards, made no challenge to the facts asserted by the Crown, other than that Mr B “candidly” admitted making one inquiry about false identification plates.  On the hearing of the appeal, Mr B disputed having possessed the truck for any more than 20 minutes, but did not really explain the basis of that late challenge.  He also disputed on appeal that the prime mover was stolen, ignoring the matter of his plea of guilty when represented by experienced counsel, and that counsel’s submissions.

1. Mr B had been convicted in the Brisbane District Court on 17 March 1988 of the offence of receiving, and placed on probation for two years.  He was also then ordered to perform 240 hours of community service, and to make restitution of $400.00.  More importantly, on 10 April 1996 he again appeared in the Brisbane District Court, and this time was convicted by a jury on 2 charges of the offence of possessing a motor vehicle with intent to permanently deprive its owner of the use and possession of the relevant vehicle.  On each charge he was imprisoned for two and a half years, such imprisonment to be suspended after he had served six months.  The period of suspension was four years.

1. The matters last described make the sentence imposed appear curiously lenient. It is explained by reason of the applicant’s co-operation with investigating police; that being both past co-operation as at the date of sentence, and intended future co-operation of the variety described in s 13A of the Penalties and Sentences Act.  Mr B had given evidence at the committal proceedings held in relation to a person G, who asked Mr B to arrange storage of a stolen Pajero motor vehicle.  Mr B’s evidence also described a phone call made by Mr G on the day of the police raid (15 June 2001), in which Mr G had asked Mr B to hide certain incriminating papers.  Mr G subsequently pleaded guilty to a count of unlawful possession of that Pajero motor vehicle and was sentenced to 18 months imprisonment, wholly suspended for an operational period of three years.  It appeared common ground at Mr B’s sentence that he had been an accomplice in relation to the offence committed by Mr G with respect to that Pajero motorcar.

1. Mr B had co-operated with the investigating police with respect to providing evidence of the offence committed by Mr P involving the Scania prime mover.  As at the date of sentence no committal proceedings had been held with respect to Mr P’s offence; at the appeal, it emerged that Mr P would not face any charges.

1. Mr B had further cooperated by providing a statement dated 24 September 2002, well after his own arrest, in which he had described the part played with respect to the Scania motor vehicle by a person S, who had brought it to the shed, and who was apparently involved in the proposed supplying of a new false identity to that vehicle.  The police also had other evidence linking Mr S in January to that prime mover having photographed it at his residence at that time.  At the appeal, it also emerged that the charges against Mr S had been discontinued.

1. The submissions made by counsel for the prosecution during the sentence hearing were that Mr B had provided significant co-operation to the investigating police concerning the offences allegedly committed by each of Mr P and Mr S.  The submission by the Crown was that a head sentence in the order of two years imprisonment was appropriate, which sentence could be reduced by approximately 40% to reflect that co-operation, resulting in a head sentence of 14 months, which head sentence the Crown submitted should be suspended after Mr B had served four months. 

1. The appeal record makes plain that those submissions somewhat surprised the learned, and experienced, sentencing judge, who expressed concern that he was being invited to reduce both the head sentence, and to suspend the greater part of that, by reason of the one mitigating circumstance, namely the applicant’s co-operation.  The judge remarked upon the applicant’s apparent intimate involvement in the necessary process for reidentification of a valuable motor vehicle which the applicant had kept in a very large shed, after being previously been given heavier sentences than those now being sought by the Crown, for like offences committed six years earlier.

1. The learned judge had had placed before him the sentencing remarks from the applicant’s April 1996 conviction after a trial.  Those sentencing remarks revealed that Mr B had been in possession of two motor vehicles, on each of which number plates had been switched and which had had their colours changed, and other appropriate modifications intended to conceal that these were stolen vehicles, and to enable their resale at a profit.  On that occasion the learned judge noted that there was no evidence that it was the applicant who had altered the engine and chassis numbers of those vehicles, but the jury’s verdict was that Mr B had come into possession of each of the vehicles knowing them to have been stolen.  Those sentencing remarks record that there had been no offer of any compensation by the applicant.

1. Unsurprisingly, Mr B’s counsel agreed with both the head sentence and the period in actual custody being proposed by the Crown Prosecutor.  Mr Richards frankly conceded that he could not cavil in his submissions with the submission that Mr B must spend some actual time in custody, by reason of his previous conviction.

1. Mr Richards also endeavoured to persuade the learned sentencing judge that Mr B had entered a relatively timely plea of guilty.  The learned judge did not accept that submission, remarking more than once during the argument that he had been told only the day before that the matter was to be a three day trial, and that the plea was entered only on the day of sentence.  The learned judge did not regard counsel’s explanation, namely that it had appeared to Mr B’s legal advisors until very recently that the Crown case presented at the committal hearing disclosed a technical deficiency in proof of the actual ownership of the Scania motor vehicle, as a satisfactory explanation for the delay until that day in pleading guilty.  The judge did regard it as appropriate to accept that by that plea, Mr B had saved the community the expense of two days of court proceedings.  I agree with the approach taken by the learned  judge.

1. The submissions made by Mr Richards describe Mr B as a relatively hard working man, who had completed an apprenticeship as a furniture polisher, worked as a plasterer, as a mechanic, and thereafter at differing times in both employed and self employed work in spray painting and panel beating businesses.  He is married with three children.

1. The submissions by Mr Richards pointed to the recognition by the New South Wales Court of Criminal Appeal, in its decision in the R v W (2002) 129 A Crim R 400, that in the ordinary course an offender who decides to assist authorities is likely to serve any sentence in the more onerous conditions of protection. This is a relevant matter.

1. The learned sentencing judge declared himself somewhat perplexed by both the attitude of the Crown regarding the appropriate sentence, and the attitude of the applicant’s advisors regarding his plea. His in camera sentencing remarks pursuant to s 13A of the Penalties and Sentences Act record that the sentence he would otherwise have imposed, absent Mr B’s intended future co-operation, was a sentence of two and a half years imprisonment.  That sentence would have included all appropriate reductions for the past co-operation as at January 2003.  It follows that the reductions by one year to the sentence actually imposed reflected Mr B’s undertakings regarding future assistance.  The learned judge specifically commented that the fact of Mr B’s making further admissions, including as to his own involvement after the committal proceedings and the presentation of the indictment, were inconsistent with an intention to plead not guilty.

1. The learned judge specifically referred to a number of previous decisions of this court, including to the matters of Phillips [2002] QCA 97, Milner [2002] QCA 222, Walters [2002] QCA 76, R vNomikos & Luff [1999] QCA 195, and Priman [1990] QCA 65. In his sentencing remarks he described those cases as establishing that the appropriate starting point for the head sentence was three years imprisonment, not two as submitted by the Crown. Presumably it was matters personal to the applicant which would have otherwise reduced the sentence to one of two and a half years imprisonment, absent the section 13A factors.

1. In the matter of Webber (2000) 114 A Crim R 381 this court remarked (at 382) that a prisoner who provides tangible co-operation in the prosecution of others, who are implicated in the prisoner’s (or some other) criminal offence, should receive a significant reduction in sentence, sufficient to afford an inducement to others to provide such co-operation. When one simply compares the sentence imposed on Mr B for this offence with the sentence previously imposed on him for like offences, that goal does appear to have been achieved, irrespective of whether the sentence was excessive for any other reason.

1. It is relevant to consider some past judgments of this court.  In the matter of Phillips, Mr Phillips was sentenced to two and a half years imprisonment after a trial, that sentence to be cumulative with a sentence of five months imprisonment in respect of an activated and previously suspended sentence for another offence.  Mr Phillips had been convicted for the unlawful possession of  a motor vehicle, which was found in a stripped condition in premises he controlled.  He had a significant and serious history of prior offending behaviour, which included sentences of nine years for rape, and five years for an associated burglary, and one and a half years imprisonment for offences involving drugs.  His appeal against what was an effective three year penalty was dismissed.

1. The applicants Nomikos and Duff appealed their respective sentences of three years imprisonment with parole recommended after 12 months, and four years imprisonment with parole recommended after 18 months.  Mr Duff had pleaded guilty to eight charges of unlawfully possessing motor vehicles, and Ms Nomikos was convicted after a trial of three such charges.  Mr Duff had been co-operative with the authorities, whereas Ms Nomikos had not, and she had demonstrated no remorse.  They had been involved in stealing motor vehicles and providing them with a new false identity.  Ms Nomikos had played the lesser role.  Their applications for leave to appeal were dismissed.

1. A Mr Milner was sentenced to three years imprisonment, following a late plea of guilty and an investigation in which he had demonstrably not co-operated with the police.  He was convicted of two offences of possessing stolen vessels and their trailers, and his offending behaviour involved stealing and giving new false identities to boats.  One had been sold for $4,500.00.  He had one prior conviction for the possession of a stolen motor vehicle which had had a new false identity supplied to it.  His appeal was dismissed.

1. During the hearing of the appeal in Milner, this court considered a number of other sentences imposed or upheld at appellate level.  These included a matter of Kent [2000] QCA 247, in which that applicant had his appeal dismissed in respect of a sentence of 18 months imprisonment suspended after serving four months, where that applicant was convicted on his plea of guilty of one offence of unlawful possession of a motor vehicle. He had a prior conviction for dishonesty some 10 years earlier. It was observed that that sentence was at the high end of the range.

1. The applicant in Walters had been convicted on a plea of guilty of four offences of unlawful possession of a motor vehicle, and sentenced to three years imprisonment with parole recommended after 12 months.  Mr Walters had previously been sentenced to imprisonment for two and a half years to be suspended after three months, for offences involving drug possession.  Williams J, as he then was, observed during that appeal that it was a light sentence.

1. In Priman, that applicant had been convicted of five offences of unlawful possession of motor vehicles.  He pleaded guilty and had no prior convictions.  His sentence of three years imprisonment was not disturbed.  In the matter of Back [1997] QCA 484; CA No 335 of 1997, judgment delivered 4 November 1997, Mr Back was convicted after a trial of two offences of being in unlawful possession of a motor vehicle, and two of false pretences. He was sentenced to three months imprisonment, to be suspended after serving 12 months and that sentence was not disturbed.

1. The sentences imposed at appellate level in the matters of Duff, Nomikos, Milner, Walters, Priman and Back and the facts in those cases, certainly demonstrate that where an offender is convicted of unlawful possession of motor vehicles, in circumstances showing active participation in unlawful trading in falsely identified vehicles or their stolen parts, that person can expect a head sentence of imprisonment of at least three years; and more where there are a significant number of vehicles involved.  Where the latter is the case, even those who have no prior convictions can expect a three year head sentence.  In this case, despite the suspicious circumstances, including the applicant’s changes of position about the facts, it is important that the evidence did not show that he was expecting to gain any benefit from possessing the truck, or expecting or expected to help dispose of it.

1. The appropriate head sentence, demonstrated by appellate authority where only one vehicle is involved, is less than that of three years.  In Phillips it was two and a half years with a bad prior history; and in Kent one and a half years suspended after four months where there was very little prior history.  A matter not previously mentioned, the matter of Hearn [1992] QCA 76 is consistent with that lesser level, and has some similarities with this matter. The applicant in Hearn was 45, with no previous convictions and a good work record, and was convicted of being in possession of a valuable prime mover motor vehicle.  He was sentenced on the basis that he intended to use the vehicle in the course of his own business as a truck driver, but further that it was considered unlikely he would ever reoffend.  He had pleaded guilty.  The sentence originally imposed of three and a half years imprisonment with parole recommended after 12 months was set aside, and a sentence of two years imprisonment with parole recommended after nine months was imposed by this court.  In that case, that applicant was expecting to keep and use the vehicle.

1. With those authorities and sentencing patterns in mind, it appears that the sentence the learned judge would otherwise have imposed, namely two and a half years imprisonment for this offence involving storing a prime mover, a late plea, and no evidence of intended benefit or other intended assistance, was above the appropriate range; which would have been less than two years, after taking into consideration the co-operation before trial. I am satisfied that the sentence imposed by the learned judge was too severe after taking the s 13A matters into account, and the submission of the Crown was more realistic. In the unusual circumstances it was sensible to order as the judge did that this applicant have a portion of the term of imprisonment suspended for an operational period of three years, and I would leave the head sentence of 18 months alone, but suspend that sentence after the applicant has served four months, also leaving in place the operational period of three years.

1. MUIR J: I agree with the reasons of Jerrard JA and with the orders he proposes.