R v Jorquera - [2013] SASCFC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JORQUERA
[2013] SASCFC 145
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
19 December 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION
Appeal against sentence.
The appellant pleaded guilty to two counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA).
Between 30 September 2010 and 20 February 2012 the appellant dishonestly dealt with 60 V8 motor vehicle engines and 78 V8 motor vehicle transmissions, the property of General Motors Holden.
The sentencing judge fixed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. The appellant was sentenced to a term of six years imprisonment with a non-parole period of three years.
The appellant appeals against sentence, on the grounds that (1) both the head sentence and the non-parole period are manifestly excessive; and (2) the learned sentencing judge erred in failing to suspend the term of imprisonment.
Held per Stanley J (Kourakis CJ and Vanstone J agreeing) (dismissing the appeal):
1. Neither the head sentence nor the non-parole period is manifestly excessive (at [16] - [22]).
2. The sentencing judge had regard to all the relevant sentencing considerations in the particular circumstances of the appellant’s case. The judge made no error in declining to suspend the sentence (at [23] - [29]).
Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, referred to.
Markarian v The Queen (2005) 228 CLR 357; Police v Curtis and Marshall (2004) 145 A Crim R 587; Chisholm v The Queen (1985) 122 LSJS 230; House v The King (1936) 55 CLR 499, discussed.
R v Davies (1996) 88 A Crim R 226; R v Wacyk (1996) 66 SASR 530; R v O'Toole [2013] SASCFC 18; R v Kruger (1977) 17 SASR 214; Wessling v Police (2004) 88 SASR 57; R v Reichstein (2007) 251 LSJS 279; Bugmy v The Queen (2013) 87 ALJR 1022, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Good reason"

R v JORQUERA
[2013] SASCFC 145
Court of Criminal Appeal: Kourakis CJ, Vanstone and Stanley JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Stanley J.
VANSTONE J: I agree that this appeal should be dismissed for the reasons written by Stanley J.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant pleaded guilty to two counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). The maximum penalty for this offence is a term of imprisonment of 10 years.
The Court fixed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). The appellant was sentenced to a term of six years imprisonment with a non-parole period of three years. But for the appellant’s guilty pleas, the learned sentencing judge would have imposed a term of imprisonment of eight years.
The two counts charged alleged that between 30 September 2010 and 20 February 2012 the appellant dishonestly dealt with 60 V8 motor vehicle engines and 78 V8 motor vehicle transmissions, the property of GMH Ltd.
The appeal raises two grounds. First, the appellant contends that both the head sentence and the non-parole period are manifestly excessive. Secondly, the appellant contends that the learned sentencing judge erred in failing to suspend the term of imprisonment.
Circumstances of the offending
The charges to which the appellant pleaded guilty encompassed a course of conduct over approximately 17 months that was serious criminal offending. It was, as counsel for the DPP, Mr Illingworth, described it, “a well organised joint-enterprise, prolonged, deliberate and repetitive.” Car engines and transmissions were stolen from GMH Ltd on a systematic basis. While the appellant was not an instigator of the scheme, his role in it was crucial.
The appellant worked as a contractor to a courier company. His zone included GMH Ltd’s Elizabeth plant. In the course of his work he undertook the delivery of goods to the Elizabeth plant. For this purpose he was afforded entry to the plant on a regular basis. For the performance of his contract he used his courier van which was liveried in the logo of the courier company. He used this van for the purposes of the offending. He would enter the GMH Elizabeth plant through the west gate. That gate is staffed by security personnel. The procedure at the time required him to sign in and out of the plant, with various details recorded in inbound and outbound vehicle logs. No inspection was made of courier vans upon entry into the plant, although a visual inspection, but no search, was conducted upon exit. Once the appellant had obtained entry to the plant via the west gate, he enjoyed vehicular access to all but a few areas of the plant. Importantly, this included direct vehicular access to Plant 7. In Plant 7 GMH stored shipping containers of engines and transmissions until they were required for installation into vehicles. Engines would be stored in Plant 7 for periods of up to five days prior to being moved to the assembly line located in Plant 2.
The appellant’s role in the offending was to drive his courier van into Plant 7, where an employee of GMH Ltd would load engines or transmissions into his van using a forklift. With the engines and transmissions in his van, the appellant would drive from the Elizabeth plant and transport the engines and transmissions to another address nearby, where he would pass the engines and transmissions to another person also engaged in the criminal enterprise.
The appellant undertook this conduct on some 50 occasions.
The learned sentencing judge sentenced the appellant on the basis that the value of the goods he stole was at least half a million dollars, probably somewhat more. The prosecution submitted that the total value of the goods stolen by the appellant was in the vicinity of $550,000 to $700,000. This was not challenged by the appellant. Notwithstanding the pivotal role the appellant played in this criminal enterprise, however, he received payment of only about $30,000 for his part in the scheme. He has not made restitution.
Circumstances of the appellant
The appellant is 27 years of age. He has no prior convictions. He is fortunate to have a strong supportive family. He has recently become a father. Unfortunately his marriage, which was already under strain, collapsed when his wife learned of his criminal offending. He has an excellent work history. He is plainly someone who was well regarded by his family and church community, who were shocked to learn of his offending which they considered out of character. There is no doubt of his remorse and contrition. This is reflected in his early pleas of guilty. The learned sentencing judge found that the chief reason for the offending was the appellant’s desire to impress and please his wife, in circumstances where even before the offending, he was under some financial pressure. The appellant’s prospects of rehabilitation are said to be good. The learned sentencing judge proceeded to sentence on the basis that he considered it unlikely that the appellant would offend again. Consequently he gave less weight to matters of personal deterrence in fixing sentence.
Manifestly excessive?
The approach of an appeal court in considering an appeal against sentence is explained by the High Court in Markarian v The Queen.[1]Gleeson CJ, Gummow, Hayne and Callinan JJ, said:[2]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[1] [2005] HCA 25, (2005) 228 CLR 357.
[2] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370 – 371.
The appellant submits that in imposing sentence the learned sentencing judge gave too much weight to considerations of general deterrence and too little weight to the personal circumstances of the appellant resulting in the imposition of a sentence that is manifestly excessive. He submits that having regard to prevailing sentencing standards, the sentence imposed applies to more serious offending, generally involving greater involvement in the design and implementation of a dishonest scheme with betrayal of great trust and substantial enjoyment of the fruits of the unlawful conduct. He submits that sentences of this length are reserved for criminal conduct which involves a greater level of moral turpitude than is the case with this appellant’s offending. Accordingly, the sentence is too severe and in all the circumstances does not fit the crime.
In cases of theft arising as part of a course of conduct, a sentencing court must assess the relative severity of that conduct by reference to a range of factors. Those factors include the nature of the breach of trust, the amount of money or the value of the property involved, the number of transactions, the length of time during which the dishonest behaviour continued and the amount of restitution made.[3]
[3] Police v Curtis and Marshall [2004] SASC 184 at [37], (2004) 145 A Crim R 587 at 594.
Deterrence has a substantial role to play in sentencing for systematic dishonesty. In Chisholm v The Queen[4] King CJ said:[5]
… The systematic course of dishonesty undoubtedly calls for a substantial sentence and there is, moreover, the important aspect of deterrence. The courts have a responsibility to impose sentences on those who abuse the trust which is placed in them which will operate as a deterrent to others in a position of trust who might either for psychological or any other reason experience the temptation to take what does not belong to them…
[4] (1985) 122 LSJS 230.
[5] (1985) 122 LSJS 230 at 232.
For this reason, previous good character, an absence of prior convictions and the unlikelihood of future offending are given little weight.[6]
[6] Police v Curtis and Marshall [2004] SASC 184 at [39], (2004) 145 A Crim R 587 at 594; R v Davies (1996) 88 A Crim R 226 at 229.
I would not interfere in the exercise of the sentencing judge’s discretion. I am not persuaded that either the head sentence or the non-parole period is manifestly excessive.
This was serious, sustained and deliberate criminal conduct involving goods worth a very substantial sum of money. The appellant well understood the dishonest nature of his conduct. His motive does not invite any impulse to leniency. While the breach of trust involved is considerably less than that of a person acting in a fiduciary capacity, there is nonetheless a real breach of trust involved here. But for the appellant’s position as a courier driver, he would have been unable to obtain the access to the GMH Ltd plant which was crucial to the perpetration of the entire criminal enterprise. The value of the goods stolen was in excess of $500,000. There were around 50 occasions when the appellant stole these goods. This occurred over a 17-month period. There has been no restitution made by the appellant.
The learned sentencing judge correctly emphasised the importance of general deterrence in fixing penalty. The personal circumstances of the appellant were properly brought to account by the sentencing judge in the discount for the early guilty plea, reflecting the appellant’s remorse and contrition, and in fixing a non-parole period representing 50 per cent of the head sentence, reflecting the favourable prospects of rehabilitation.
I would dismiss this ground of appeal.
Failure to suspend the sentence
The discretion to suspend a sentence arising under s 38 of the Sentencing Act is conditioned solely by the Court’s satisfaction that “good reason exists for doing so”. This Court has emphasised previously that it would be wrong to circumscribe those plain words by reference to any supposed formula or other gloss.[7]
[7] R v Wacyk (1996) 66 SASR 530 at 535; R v O’Toole [2013] SASCFC 18 at [50]; R v Kruger (1977) 17 SASR 214 at 221; Wessling v Police [2004] SASC 51 at [27], (2004) 88 SASR 57 at 63.
Any attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment, would involve error.[8] The decision to suspend must be made solely on the facts and circumstances of the particular case.
[8] R v O’Toole [2013] SASCFC 18 at [50].
The learned sentencing judge declined to suspend the sentence because in his view the offending was “too serious”.
The appellant submits that this approach discloses error on the part of the learned sentencing judge. He contends that the sentencing judge reasoned that he was precluded from suspending the sentence because of the serious nature of the criminal conduct involved.
In my view, this criticism is misplaced.
The learned sentencing judge had regard to all the relevant sentencing considerations in the particular circumstances of the appellant’s case. As he said, he “earnestly considered” whether or not there were good grounds to suspend the sentence. Plainly, he did not consider that he was precluded from doing so by reason of the seriousness of the offending. The factors in favour of suspension of the sentence, namely, the relative youth of the appellant, his prior good record, the unlikelihood of him reoffending and the favourable prospects of his rehabilitation, were all matters referred to by the sentencing judge in his sentencing remarks. He expressly weighed these matters in fixing a lower non-parole period than he otherwise would have. He obviously weighed these matters in coming to a conclusion that there was not a good reason to suspend in the circumstances of this case. In determining the weight to be given to the personal circumstances of the appellant and the seriousness of his criminal conduct in deciding whether good reason existed to suspend sentence, the sentencing judge was exercising a discretionary judgment. There is no error demonstrated of the kind to which the principles in House v King[9] apply. The weight given to the seriousness of the offending was appropriate and does not disclose error.[10] For the appeal to succeed it is not sufficient that the Court be satisfied that the sentencing judge gave more or less weight than the appeal Court thinks should be given to relevant considerations.[11]
[9] (1936) 55 CLR 499 at 505.
[10] R v Reichstein [2007] SASC 374 at [22], (2007) 251 LSJS 279 at 281 – 282.
[11] Bugmy v The Queen [2013] HCA 37 at [24], (2013) 87 ALJR 1022 at 1028.
I would dismiss this ground of appeal.
Conclusion
I would dismiss the appeal.