R v Gale

R v GALE
[1999] SASC 309

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ: I agree.
BLEBY J. (ex tempore) This is an appeal against sentence imposed by a judge of the District Court. The appellant pleaded guilty to three counts of receiving and one count of unlawful possession. He was sentenced to 27 months’ imprisonment with a non-parole period of 15 months, both running from 9 April 1999, the date of the sentence. It was a single sentence for all counts, imposed under s 18A of the Criminal Law (Sentencing) Act 1988.
The particular offences were as follows:

Counts 1, 2 and 3 were each counts of receiving books knowing them to have been stolen. Each offence took place between 1 November 1996 and 28 February 1997. Count 1 involved two books to the value of $20. Count 2 involved an unspecified number of books to the value of $100. Count 3 involved two books to the value of $20.

The maximum penalty for the offence of receiving is eight years’ imprisonment.
Count 4 was a count of unlawful possession of a number of items reasonably suspected of having been stolen or obtained by unlawful means. On 25 March 1997 the appellant had in his possession approximately 1,800 books, a quilt cover, seven sheet sets, two pillow cases, two wallets, three boxes of aftershave and two boxes of perfume, all of which were reasonably suspected of having been stolen or obtained by unlawful means. The goods were valued at between $8000 and $9000.
The maximum penalty for that offence is a period of two years’ imprisonment.
The matters were originally set for hearing in the Adelaide Magistrates’ Court. About a week before the trial was due to commence the appellant elected to have the matter tried by a jury in the District Court. He was arraigned in the District Court on 25 May 1998 and entered a plea of not guilty. The initial information alleged the involvement of a much greater quantity of books, approximately 3,600. The appellant requested that these books be itemised. This caused some delay. The list of books was provided on 8 July 1998.
There were a number of directions hearings after this date and eventually the appellant indicated that the matter needed to go to trial because no agreement could be reached.
The appellant entered a plea of guilty on 6 April 1999, the day before the date set down for the trial. It was therefore a very late plea but after much time seems to have been taken identifying particulars of the property concerned, but with overtones of seeking to delay the inevitable legal process. The sentencing judge considered that the pleas could have been negotiated much earlier and on the original information. The court resources were set aside for a six day trial and they were wasted.
I agree with the view expressed by the learned sentencing judge. It was a complex issue with a large number of items involved. However, in my view, if the appellant wanted the full advantage of a plea of guilty he could have cooperated to a much greater degree at a much earlier stage.
The appellant was aged 49 at the date of the sentencing submissions. He was married at the age of 22 for eleven years and has a daughter of 23 and a son aged 20 from that marriage. His relationship with both children is said to be close. At the time of his sentencing he was in another relationship of some 18 months’ standing.
He is a graduate of The Flinders University of South Australia, having studied economics and mathematics. After graduation he worked in the Australian Bureau of Statistics for ten years. After leaving this job he bought a newsagency. A year later he moved into book selling. He ran his business known as Parabooks from the late 1970s to the early 1990s successfully, sometimes employing up to six employees. He also supplied schools, public libraries and kindergartens with books. That formed a large portion of his business.
In 1992 or 1993 one of his employees left and took a number of his clients with her. This destroyed what he described as the “book round”. The business began to enter into financial trouble. It was at this time that the appellant committed his first offence of this nature. He began purchasing books from a known shoplifter and heroin addict and from others he suspected of having stolen the books.
On 31 May 1995 he was convicted of receiving and of unlawful possession of a substantial number of books. The offences were committed in 1994 and a combined sentence at that stage was imposed of 14 months’ imprisonment with a five month non-parole period.
After his release from gaol the business was in an even worse position. After media coverage of the first offence, legitimate book suppliers were unwilling to deal with the defendant and would not do so on credit. This led him to buying books from auctions, liquidation sales, weekend markets and private individuals and, eventually, the same sort of people who caused his downfall in 1994. The appellant has been financially ruined by the offences and no longer has any business. Since being charged, he had worked at an introduction agency.
At the time of sentencing he had suffered from Bell’s palsy for 12 months and had only made a 75% recovery. There was unlikely to be any further recovery, apparently leaving him with distinctive facial features, self‑consciousness and a lower self‑esteem. He will find it more difficult to obtain employment.
In imposing the sentence of 27 months, the learned sentencing judge allowed a 10% discount for his plea of guilty. He mentioned the other factors to which I have referred. He did not attempt to identify the sentence he would have imposed for each individual charge. He recognised that the three receiving offences involved items of relatively low value. He acknowledged that that was relevant to the degree of criminality involved in the further offending. However, his Honour considered that even those offences would have been treated very seriously because of his previous convictions.
This court has pointed out on previous occasions that in imposing a single sentence for multiple offences under s 18A of the Criminal Law (Sentencing) Act, the sentencing court runs a serious risk of committing an error in the sentencing process if notional sentences for each count are not first arrived at and then consideration given to whether they should be cumulative or concurrent: R v Major (1998) 70 SASR 488 per Doyle CJ at 490. However, as the court later pointed out in R v Symonds [1999] SASC 217 unreported, 1 June 1999 at par 21 and par 22:
“In Major the Court was not stating a process that must be followed in the sense that failure to follow it is in itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major.”
I consider that by not undertaking the process of considering separate sentences in this case, the learned sentencing judge allowed himself to be overwhelmed by what he perceived to be the total criminality of the four offences when viewed against the background of the earlier ones, and that he failed to give sufficient weight to the nature and seriousness of the individual charges.
The offence of receiving stolen goods is serious. It involves knowledge that the goods are stolen. The receiving offences here were part of a scheme. The appellant used it as a method of stocking his shop. He played on the weaknesses of a drug addict and shoplifter. However, the value of the property does influence to some extent the level of penalty. For whatever reason, it is the three receiving charges which are the subject of relatively low‑value items of property. I reject the appellant’s submission that the three receiving charges were so minor that they warranted the imposition of a fine. The appellant’s previous record and the similarity of the offences warranted terms of imprisonment. Looking at them against his previous record and taking all the other factors into account, I would have begun by fixing a notional sentence of three months’ imprisonment on each of the receiving counts. I would have made them cumulative, or in other words, a total sentence of nine months.
If that were correct, and using the actual starting point of the sentencing judge in this case, namely 30 months, that would mean that he would have to award, before giving credit for any plea, a period of 21 months’ imprisonment for the one unlawful possession charge. Serious as it was, this offence did not deserve a penalty close to the maximum. It becomes apparent that, in my opinion, the sentencing judge erred and that the global penalty was manifestly excessive. The judge may not have erred if he had heeded the Court’s warning in Major and had approached the task by assigning a notional penalty for each charge. Having fixed a notional period of nine months for the three receiving charges, I would then fix a notional period of 12 months for the one unlawful possession charge. It is an offence which attracts a significantly lower penalty than receiving, but this offence obviously involved many transactions and property of a substantial value. I consider that this penalty should be cumulative upon the notional penalties for the receiving charges, making a total notional sentence of 21 months.
I would see no reason to reduce that by the application of any totality principles, but I would allow perhaps slightly more discount than did the sentencing judge for the late plea of guilty. I would fix a single sentence under s 18A of the Criminal Law (Sentencing) Act of 18 months’ imprisonment. I would fix a non-parole period of 10 months. The resultant difference reveals more than an appropriate range of penalties within which individual views may differ.
I repeat, I consider that the penalty imposed by the sentencing judge was manifestly excessive. In my opinion, the appeal should be allowed, the sentence imposed by the District Court should be set aside and a fresh sentence of 18 months’ imprisonment should be imposed with a non-parole period of 10 months. The head sentence and the non-parole period should both run from 9 April 1999, the date fixed by the sentencing judge.
WICKS J: I agree.
DOYLE CJ: The orders of the court are as follows:
Appeal allowed.
Set aside the sentence imposed by the District Court.
Substitute a single sentence under s 18A of the Criminal Law (Sentencing) Act of imprisonment for 18 months. In relation to that sentence, fix a non‑parole period of 10 months.
Direct that the head sentence and non-parole period run from 9 April 1999.

[1999] SASC 309

20 July 1999