R v Hicks
[2000] VSCA 100
•30 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 71 of 2000
| THE QUEEN |
| v. |
| BRADLEY DEAN HICKS |
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JUDGES: | WINNEKE, P., BATT and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 May 2000 | |
DATE OF JUDGMENT: | 30 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 100 | |
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Criminal law – Sentence – Handling stolen motor vehicles and attempting to obtain property by deception – Sentence of three years’ imprisonment not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms. C. Quin | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. P.G. Priest, Q.C. and Mr. M. Croucher | Brian J. Weyman & Co. |
WINNEKE, P.:
The applicant, Bradley Hicks, who is aged 27 years now, pleaded guilty in the County Court on 29 March of this year to four counts of handling stolen motor vehicles (counts 1 to 4 inclusive on the presentment), one count of attempting to obtain property by deception (count 5) and one count of using false documents (count 6). At the end of the day, his Honour did not proceed to sentence the applicant in respect of the charge alleged by count 3 because the facts indicated that the vehicle involved had not been stolen. We have now been informed that a nolle prosequi has been entered by the Crown in respect of that charge.
In respect of the remaining counts on the presentment his Honour sentenced the applicant as follows:
(a) upon each of counts 1, 2 and 4, (handling) - a sentence of two years imprisonment;
(b) upon count 5 (attempt to obtain property by deception) - a sentence of nine months imprisonment; and
(c) upon count 6 (use false documents) - nine months imprisonment.
His Honour ordered that six months of the sentence imposed on count 4 and six months of the sentence imposed upon count 5 be cumulated upon the sentences imposed upon counts 1 and 2. The total effective sentence was therefore one of three years imprisonment. His Honour ordered that the applicant serve a minimum period of two years before becoming eligible for parole. The maximum sentences, at the relevant time, for handling was 15 years imprisonment; for attempting to obtain property by deception, five years imprisonment; and for using false documents, 10 years imprisonment.
The applicant has applied for leave to appeal against the sentences imposed on the principal basis that those sentences, individually and in total, are manifestly excessive. As particulars of that ground, it is contended that his Honour has manifestly failed to give sufficient weight to the applicant's plea of guilty and the prospects of his rehabilitation.
The circumstances of the offences are in short compass. The applicant is a young man of otherwise unblemished reputation. Having left school at a relatively early age, he pursued a variety of occupations until he ultimately set up his own tiling business. He is apparently a competent sportsman and has many admirers in that fraternity. However, it would seem that in late 1998 he decided to direct his talents towards dealing in stolen cars. At some time in September 1998 he rented a garage at the rear of premises occupied by Diamond Valley Auto Electrical in Bundoora, and within a space of some two months had received from a person or persons, whom he declined to identify subsequently, four cars which he believed to have been stolen. He paid for those cars very small prices ranging from $1,000 to $2,000, despite the fact that the cars were of considerably greater value. These cars were the subject of counts 1 to 4 on the presentment. Because some doubt arose about the provenance of the car which was the subject of count 3, the charge in respect of that car was, as I have already said, the subject of a nolle prosequi. These cars were still stored in the garage - unsold - when the police, acting on information received, entered those premises in early March 1999 and seized the contents. The value of the cars was assessed to be in excess of $100,000 and the Holden vehicle, which was the subject of count 1, had been reduced to parts and panels. The applicant was paying at the time $100 per week by way of rental for the garage.
In December 1998 the applicant was introduced to a man called Thompson. At some stage in January 1999 Thompson told him that he had a Volkswagen Transporter Van which he "would not mind having stolen". The applicant agreed to accommodate Thompson and arrangements were made pursuant to which Thompson, in late January 1999, left his transporter van in the driveway of his premises in Chirnside Park and the keys to it in the letter box. Pursuant to the agreement, the applicant went to those premises and removed the van and then drove it to his home in Foote Street, Lower Templestowe. On the same day Thompson announced to the police that his vehicle had been stolen and then made a claim on the AMP Insurance Co for the value of the van in the sum of approximately $40,000. Negotiations followed with the insurance company to settle the claim at the insured amount of $34,649. The applicant's role in this "scam" was the subject of count 5 on the presentment. Information about the transaction apparently came to the notice of the Criminal Investigation Branch at Lilydale and, on 26 February 1999, police attended the applicant's premises at Foote Street with a search warrant. They apparently did not have to search far or for long because they found in the driveway the transporter van which the applicant had taken from Thompson's house. The applicant was absent at the time, but he was telephoned and informed of the police presence. He failed, however, to return to his home on that day. On the following day he attended at the Lilydale Criminal Investigation Branch office where he spoke to Detective Senior Constable Morrissey. He produced to Morrissey two documents calculated to suggest that he was lawfully in possession of the van; the first was a "Transfer of Vehicle Application" form recording that the van had been purchased from one "Paul Mathews" of "17 Clarke Street, Northcote"; and the second was an "invoice" purporting to show that the applicant had paid $2,000 to Mathews as a deposit upon a purchase price of $17,000. These documents were later conceded by the applicant to be false and were the subject of count 6 on the presentment. It was some seven days later that the Armed Robbery Squad from Greensborough Criminal Investigation Branch executed their warrant at the garage in Bundoora. On 12 March 1999 the applicant was arrested at his home in Foote Street. He thereafter made full admissions and was co-operative.
In passing sentence, the learned judge noted "that there was a measure of planning and sophistication" in the applicant's acquisition of the vehicles, notwithstanding that he had told police that "he wasn't sure what he was going to do with them", even though he had "chopped up" the main shell of one of them and had reduced it to parts. His Honour noted that the applicant had told police in March of 1999 that he had "had the cars for months" and had "got himself into a mess" from which he had tried to extricate himself. His Honour said that he was prepared to accept that the applicant was "undecided as to what to do with the stolen cars" and that such indecision "may be indicative of a measure of remorse" which was further to be found, in his Honour's view, in the applicant's confessions and pleas of guilty. Nevertheless, his Honour went on to say that:
"Theft of motor cars is a prevalent criminal enterprise [which] to a considerable extent relies upon receivers. Very often, a motor car is a person's or a family's most substantial asset after their home and, all too often, an indispensable necessity to a reasonably manageable lifestyle. Its loss can inflict real hardship. General deterrence, therefore, becomes very significant in the sentencing process in respect of such crimes".
His Honour, speaking of the frauds involved in the offences which were the subject of counts 5 and 6, referred to the applicant's willing participation in the perpetration of the fraud on the insurance company and his initial endeavour to cover that fraud up by the production of the false documents which were the subject of count 6.
Mr Priest, who appeared with Mr Croucher for the applicant on this application, submitted that the sentences imposed were manifestly excessive, contending that, having regard to the applicant's background, his guilty plea and the remorse accepted by the judge to have been exhibited in the applicants "indecision", the sentences of two years on each of the handling counts was beyond the range which his Honour could reasonably have imposed and thus bespeak error. He referred to other sentences imposed by courts for similar offences which he said supported his submission that these sentences for handling were beyond the range available to a judge who was sentencing a first offender who had pleaded guilty and was accepted as one demonstrating remorse. Alternatively, it was submitted that portion of the head sentence should have been suspended or a lower non-parole period fixed in order to pay proper recognition to the applicant's good character and prospects of rehabilitation. Particular emphasis has been laid by Mr Priest upon the fact that this is the first time that the applicant has been incarcerated and it, so he says, - and it might be imagined - has made its impact. It was a case, Mr Priest submitted, where his Honour should have turned his attention to suspension, wholly or in part, of the sentences imposed.
As Mr Priest, in his customary concise and helpful arguments, has correctly pointed out in his submissions, the question whether a sentence is manifestly excessive cannot admit of much argument. However, he contends that the circumstances of this case demonstrate that the sentences imposed on the applicant by the learned judge cannot even pass what he called the "sniff test". Speaking for myself, I am not persuaded that the sentences which his Honour imposed are outside the range of penalties which could properly and reasonably have been imposed. I find myself in agreement with his Honour that the offences bespeak a measure of sophistication and planning and that the nature of this criminal enterprise established by the applicant was such that the purposes of general deterrence were required to be reflected in the penalties imposed. As I have already noted, the maximum penalty for handling is now 15 years, which is itself an indication of the seriousness with which the offence is regarded by the legislature. Of course, one cannot help but have sympathy for the plight of the applicant, who is a young man of hitherto good repute. However, in my view, those factors cannot conceal the rather calculated nature of the criminal enterprise upon which he embarked and the measure of the interference with the property rights of other persons and their enjoyment thereof. For my own part, I am not assisted by reference to the other cases to which we have been referred in which sentences were imposed according to their own facts and indeed at times when the maximum penalties set by the legislature were different. Although I might have not passed the same sentences which his Honour did, that is not the test. The test is whether I am persuaded that the sentences imposed by his Honour were outside the range reasonably available to him. For the reasons that I have stated, I am not satisfied that they were. Nor, in my view, has it been demonstrated that the judge was in error in failing to suspend, wholly or in part, the sentences imposed. No such error has been alleged in the grounds of the application and it has not been suggested, and in my view it cannot be assumed, that this very experienced judge did not turn his mind to suspension when such a disposition had been sought by applicant's counsel.
For these reasons the application should be dismissed.
BATT, J.A.:
I too might have imposed a lesser sentence had I been sentencing the applicant and, in particular, might have provided for a shorter period of imprisonment to be served necessarily and immediately, but, as the President has said, that is an irrelevant consideration. The question is whether the individual sentences, the total effective sentence and the non-parole period, are within the range of sentences open to the sentencing judge in the exercise of a sound discretionary judgment. For the reasons which the President has given, I am of the view that they were.
I too would therefore dismiss this application.
BUCHANAN, J.A.:
I agree.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against sentence is dismissed.
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