R v Dudkowski
[2009] VSCA 12
•4 February 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. No 74 of 2008
| THE QUEEN |
| v. |
| CHRISTIAN DUDKOWSKI |
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JUDGES: | NETTLE and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 February 2009 | |
DATE OF JUDGMENT: | 4 February 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 12 | |
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CRIMINAL LAW – Sentencing – Handling stolen goods – Two years and six months’ imprisonment with 18 month non parole period – Manifest excess – Extensive and serious criminal history – Unusual instance of the offence – Moral culpability – R v Peters (1998) 192 CLR 493; [1998] HCA 7 – Personal financial gain – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S M Cooper | Mr S Ward, Solicitor for Public Prosecutions |
| For the Appellant | Mr C B Boyce | Victoria Legal Aid |
NETTLE JA:
I will ask Dodds-Streeton JA to deliver the first judgment.
DODDS-STREETON JA:
On 23 October 2007, the appellant pleaded guilty in the County Court to one count of handling stolen goods. On 28 February 2008, he was sentenced to two years and six months' imprisonment, with a non-parole period of 18 months. No pre-sentence custody was declared.
The maximum penalty for handling stolen goods is, pursuant to s 88(2) of the Crimes Act 1958, 15 years' imprisonment.
On 1 August 2008, Neave JA granted the appellant leave to appeal.
The appellant appeals on the following grounds:
1.The learned sentencing judge did not take into account his personal circumstances in sentencing him, in particular, to the assistance that he gave to investigating authorities.
2.That the sentence imposed was manifestly excessive.
The circumstances of the offending
During the period from 3 July 2006 to 12 December 2006, the appellant was involved in handling antique and ornamental goods stolen in a burglary committed at Portland between 30 June 2006 and 2 July 2006. The total value of the items stolen amounted to $428,460 and the value of the property handled by the appellant was $256,000. It was not suggested, however, that the appellant was involved in the burglary.
According to the appellant's account, which was accepted by the sentencing judge, his involvement commenced when he was approached by an acquaintance, one Pepper, who informed him that Pepper's friend, a resident of Portland, had been burgled and a substantial amount of antiques stolen. Mr Pepper requested the appellant to make enquiries about the stolen property and a substantial reward for the appellant was suggested. The appellant, through an escort worker of his acquaintance, made contact with the putative burglars or their contacts, who displayed to him some of the stolen property. According to the appellant, those contacts asked him if he could get rid of the property for them, informing him that it was worth about $400,000 to $500,000, or at least $200,000. The appellant was told to extract $40,000 for the goods and was informed that, 'We will give you $10,000.' There were further negotiations, following which contact was made with the owner. Two persons telephoned the owner of the stolen goods offering to assist in retrieving his missing property. The owner informed the police.
The appellant then telephoned the owner on 7 December 2006. He arranged a meeting at a hotel on 9 December 2006, at which the owner gave the appellant $1,000 for the return of a pair of antique urns and candelabra. Subsequently, the owner arranged with the police to have his telephone conversations recorded. At a further meeting between the appellant and the owner on 12 December 2006, when the appellant enquired as to the owner's interest in regaining his property, the owner offered to pay only $20,000. The appellant informed his contacts and told them, 'To make the arrangements, I need a guarantee that I'll get something out of it.' The parties agreed that the appellant would receive $4,000. The appellant then directed the owner to drive to Lake Corangamite Road in Alvie, where the appellant was subsequently arrested.
Police searched the appellant's car and found a piece of paper recording the owner's telephone number. A subsequent search revealed a prepaid telephone pack which the appellant had been using to contact the complainant.
The appellant then informed police of the location of the remainder of the stolen goods. He took them to his brother's home at Alvie, where they recovered antiques and ornaments.
In his police interview the appellant made full admissions. He denied that his brother was involved in the offence or knew about the property located at his residence as stolen. The appellant admitted making the telephone calls to the owner and receiving $1,000 for the return of some of the stolen goods at the first meeting, arranging the 12 December 2006 meeting, and purchasing the prepaid mobile telephone.
The appellant told the police that he had been introduced to the burglars or contacts by an escort worker and had arranged to redeem the stolen property in return for $4,000 cash and perhaps a gram of ice.
The appellant’s antecedents
The sentencing judge recited the appellant’s history. He was born on 24 July 1945 in Austria. He was aged 59 at the time of the offending and 62 at the time of sentence.
The appellant migrated to Australia with his mother, brother and sister in 1950, following which he lived for two years in migrant camps. Due to his disturbed conduct, coupled with his mother's poor health, he was made a ward of the state. His mother died in 1961. The appellant was institutionalised for much of his youth and had a limited formal education but was fully literate, and had been employed as a manual labourer and in the night club and escort industries for a number of years. He had also been casually employed in the building industry but now received a disability pension.
The appellant married in 1979 at the age of 34, but the marriage ended in 1996. His wife had two children from a previous relationship. His present partner, with whom he planned eventually to live in Western Australia, had a 16-year-old son. The appellant also had a four-year-old daughter whom he saw about once a month pursuant to court orders for access.
The appellant’s criminal history
As the sentencing judge noted, the appellant had an extensive criminal history. He had 116 convictions and some 46 court appearances for serious offences.
His first offending occurred when he was ten years of age. He had convictions for property offences including breaking and entering and stealing, burglary, shopbreaking, larceny, malicious damages of property by fire, 11 counts of handling stolen goods, and numerous traffic offences. The appellant also had convictions for offences of violence, including armed robbery, kidnapping, making threats and false imprisonment. He had been convicted of perjury, trafficking in heroin and, more recently, possession and production of child pornography.
The appellant's first recorded criminal conviction was for breaking and entering in 1963, when he was 18 years old. He was sentenced to a period of 12 months' imprisonment with a non-parole period of three months.
On his more recent convictions for knowingly possessing and producing child pornography, the appellant was initially sentenced to a term of imprisonment, which was varied on appeal to the County Court on 29 October 2004 to a community-based order for two years, together with 300 hours of community work and submission to appropriate medical, psychological or psychiatric testing and treatment, including participation in a sex offenders program. On the second charge of possessing child pornography, the appellant was sentenced to a term of imprisonment of nine months, wholly suspended, with an operational period of 18 months.
The appellant breached that community-based order and was re-sentenced and released on a further community-based order for a period of 12 months with 122 hours of community work.
In total, the appellant had been sentenced to 33 terms of imprisonment.
Medical report
His Honour noted a report by forensic psychologist, Mr Ian Joblin, dated 3 December 2007 in relation to the appellant. Mr Joblin set out the appellant's extensive criminal history and his shame at his conviction for the child pornography offences in 2003.
Mr Joblin reported that the appellant was not a user of illicit drugs nor an abuser of alcohol.
He also discussed the appellant's account of his activities as a registered police informer since 2003 and noted his consequent concern for his personal safety in a custodial environment.
In Mr Joblin's view, the appellant's offending in this case stemmed from his involvement in the night club and escort industries and his resultant exposure to illicit drugs.
The sentence below
The sentencing judge acknowledged the appellant's considerable cooperation with the police, including the making of admissions. His Honour observed that the appellant stood to gain around $4,000 from the enterprise, the circumstances of which were unusual. His Honour noted, however, the seriousness of the offence of handling stolen goods and its impact on its victims.
The sentencing judge also considered a letter written by the appellant attesting, inter alia, to his activities as a police informer. The letter stated that in 2002 the appellant was registered as a police informer and supplied the police with information relating to drug trafficking and manufacturing. He claimed that he was successful in a particular area and that a large number of dealers were arrested. He had then worked in another area and in an operation involving a major part of Melbourne. He claimed that his involvement from 2002 to 2007 resulted in the arrest of some 60 people, the seizure of firearms and the recovery of stolen property. The appellant wrote: ‘Unfortunately due to police procedure which was being reviewed, a letter detailing my involvement in all operations cannot be made available. He nevertheless set out several police officers' names and contact telephone numbers and invited the sentencing judge to contact them to confirm his claims. The appellant referred in the letter to the dangers posed by his age and physical disabilities in a prison environment, given his history, particularly as a police informer. He sought protective custody in the event that he was sentenced to incarceration.
His Honour noted that the appellant's letter was ‘not corroborated by any material from the authorities’ but said that he would take it into account, according it limited weight, however, as it was uncorroborated and self-serving.
The learned sentencing judge recognised the appellant's early plea of guilty. He also noted that due to the appellant's convictions for child pornography charges and his cooperation with police, he would spend any term of imprisonment in protective custody, which would be considerably more onerous.
His Honour discussed the appellant's ‘disturbing criminal history’. He observed 'that gaol has been of little or no specific deterrence' to the appellant, although there were some recent indications of rehabilitation.
The sentencing judge accepted that the appellant had experienced many difficulties in life and acknowledged various circumstances relied on in mitigation, but concluded that, given the appellant's lengthy criminal history and the nature of the offending, community protection required an immediate custodial sentence.
Discussion
Ground 1
Although it would appear that leave to appeal was granted principally to enable the appellant to place further evidence before the court confirming that he had rendered assistance as a police informer, no such evidence (beyond an affidavit of the appellant's solicitor, Mr De Young, which did not advance matters) was adduced. Ground 1 of the appeal, that is, the alleged failure to accord sufficient weight and afford the appellant a corresponding appropriate discount in sentence due to that circumstance, was therefore abandoned.
Counsel for the appellant also informed us that, contrary to the assumption upon which the sentencing judge passed sentence, the appellant was not, currently at least, in protective custody.
Ground 2
The appellant nevertheless pressed ground 2, namely, that the sentence imposed was manifestly excessive, in circumstances where the appellant stood to gain a relatively small amount of money from the enterprise, which reduced the severity of his offending. The appellant's rate of offending was also said to have abated. Further, counsel for the appellant emphasised that his role was unusual and that, but for his involvement, the stolen goods may never have been recovered. Counsel submitted that accepting, as the learned sentencing judge did, the appellant's version of events, his culpability and dishonesty were at the low end of the scale, to the extent that a significant proportion of the community would not, on the R v Peters[1] test, and taking a robust perspective, characterise his conduct as dishonest.
[1](1988) 192 CLR; [1998] HCA 7.
It would be regrettable indeed if the community's notions of right and wrong were thus blunted, and in my view, ordinary, reasonable and honest persons in the community would entertain no doubt that the appellant's conduct was dishonest, actuated as it was by an intention to gain through extorting payment from the owner for the return of his own goods. Any suggestion that the appellant acted as a beneficent intermeddler, half honest broker or species of altruist is unpersuasive.
Further, counsel submitted that, by reference to the ranges and averages and median lengths of sentence for handling stolen goods discussed by the January 2007 Sentencing Snapshot,[2] the sentence imposed on the appellant was outside the range. In the period from 2001-2002 to 2005-2006 sentences imposed ranged from under one month to four years imprisonment. The median sentence imposed was one year in this period. In 2004-2005, the average term of imprisonment was 11 months and in 2005-2006 the average term increased to two years and three months.
[2]Sentencing Advisory Council, Sentencing Snapshot No 16 – Sentencing trends for handling stolen goods in the higher courts of Victoria, 2001-02 to 2005-06, January 2007.
I reject the submission that the appellant's sentence is, in all the circumstances, outside the range or otherwise excessive. It is true that the appellant's role as a handler of stolen goods was not the commonly encountered one of paying to obtain them for himself, and his conduct assisted the owner to recover them. He nevertheless intended to and did profit personally. The owner was required to pay for the recovery of the goods. The fact that the rightful owner was, in this case, the anticipated market for the goods did not vitiate his Honour's observation that many burglaries and thefts would not take place if there were no market for stolen goods, and his recognition of the deleterious impact of burglary. The appellant, for personal gain, dishonestly facilitated the workings of the market that underpins many burglaries.
Given the appellant's appalling criminal history, the seriousness of the offence and the large amount of property involved, the appellant's sentence, which is not being served, entirely at least, in protective custody, was moderate, and in my opinion appropriate. In my view, the appeal should be dismissed.
NETTLE JA:
I agree. Counsel for the appellant argued, in what was surely a very remarkable submission, that ordinary decent people would not regard the appellant's conduct as dishonest, or at least that a more robust jury might not regard it as being very dishonest, and thus that the appellant's moral culpability was towards the lower end of the scale. In my view that submission is untenable. According to any reasonable standards of decency, the appellant's conduct was both dishonest and despicable. For an offender with a criminal record of the kind which he has, the sentence which was imposed was plainly well within the range.
The order of the Court is that the appeal will be dismissed.
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