R v Konsol
[2002] VSCA 3
•5 February 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 135 of 2001
| THE QUEEN |
| v. |
| BICHARA KONSOL |
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JUDGES: | WINNEKE, P. and BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 February 2002 | |
DATE OF JUDGMENT: | 5 February 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 3 | |
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Criminal law - Sentence - Dealing in stolen cars and parts - Absence of prior convictions - Mitigating factors - Imposition of sentences for handling stolen goods double that for thefts - Inappropriate in circumstances - Sentence of imprisonment reduced and partially suspended.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K.E. Judd | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Mirabelli D’Ortenzio & Co |
WINNEKE, P.:
I will invite Buchanan, J.A. to give the first judgment in this appeal.
BUCHANAN, J.A.:
The appellant was arraigned and pleaded guilty in the County Court to two counts of theft, two counts of handling stolen goods and one count of obtaining a financial advantage by deception. He was sentenced to a term of 12 months' imprisonment on each of the counts of theft, to a term of two years' imprisonment on each of the counts of handling and to a term of two years' imprisonment on the count of obtaining a financial advantage by deception. Three months of each of the sentences imposed in respect of the counts of theft and the count of obtaining a financial advantage by deception and six months of the sentence imposed in respect of one of the counts of handling were cumulated upon the other count of handling and on each other, producing a total effective sentence of three years and three months' imprisonment. A period of 18 months was fixed before the appellant was to be eligible for parole.
The appellant has been granted leave to appeal against the sentence. The grounds of appeal are that the sentence was manifestly excessive, the sentencing judge gave too little weight to the appellant's lack of prior convictions and his plea of guilty and that he erred in finding that the appellant was involved in the theft of three or more motor cars and was involved in an organized criminal enterprise.
The appellant is now 35 years of age. He migrated to Australia from Lebanon in 1971 with his family when he was six years old. In 1994 the appellant established a business moulding fibreglass parts for cars such as spoilers and mudguards. The business was successful. In 1997 an uncle of the appellant in Lebanon invited him to invest in part-ownership of a merchant ship. The appellant sold his business, borrowed a further $80,000 from a bank and invested his entire wealth in the venture. His parents also invested money in the venture. The enterprise failed, and the appellant and his parents lost all their money. The appellant remains liable for the loan of $80,000 to this day.
The appellant was unemployed for the next three years and during this time occasionally bought and sold motor cars which he worked on. In so doing he came into contact with persons who dealt in stolen motor cars and motor car parts. In August 1998 the appellant stole a Holden Statesman motor car (count 1). The appellant purchased a Commodore sedan shell to which he attached parts from the stolen Statesman. He registered the transformed car and sold it for $33,000 in February 1999 (count 2). The appellant also stole another Holden Statesman (count 4). In March 1999 the police executed a search warrant at the appellant's premises and discovered parts from two motor cars which had been stolen. The parts consisted of a steering wheel and amplifier (count 3) and a number of items comprising part of the interior of a Holden Commodore: two seats, four door trims and a rear seat assembly (count 5).
The appellant had no prior convictions. He is married and has four children all under the age of ten years. The second-youngest child suffers from a heart complaint. After he was charged with these offences the appellant obtained work at Visy Industries. The factory manager who oversaw his work described him in a letter to the court as "a dedicated, enthusiastic and trustworthy employee" who would have "a long and stable career at Visy Industries should he please". In the course of the plea made on behalf of the appellant, evidence of the appellant's good character and the respect in which his family was held was given by the minister of his local church. The report of a consulting psychologist was also tendered. The psychologist was of the opinion that the appellant understood the consequences of his behaviour and sincerely regretted his actions. The sentencing judge said that "I accept that he is now remorseful".
Counsel who appeared for the appellant at the plea recognized that a term of imprisonment would be imposed, but submitted that in the circumstances of this case it was appropriate to suspend the whole of the sentence. Particular reliance was placed upon the absence of prior convictions, the appellant's plea of guilty, and the family that was dependent upon him. The sentencing judge declined to suspend the sentence, saying that the appellant's "criminality ... was too significant and too extensive for me to comply with Mr Randles' submissions." It appears that the mitigating factors advanced by the appellant's counsel led to his Honour fixing a minimum term which was little more than half the total effective sentence.
The appellant was able to rely upon mitigating factors of some cogency. Not the least of them was his previous good character. In R. v. Okutgen[1] the Court of Criminal Appeal said, of an offender aged 40 years:
"Where the applicant has reached maturity - and indeed one might say middle age - without any breach of the law at all, but he has lived a decent, honourable life, that he has raised a family, that he has been in constant work while he could work ... then they are basic matters to be borne in mind ... and he can call in aid his character and he is entitled to ask the court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up until the moment of conviction."
The plea of guilty, which was made at the earliest opportunity, required a reduction of the sentence that might otherwise have been imposed. The appellant was diligent and capable enough to run a successful business. The appellant promptly repaid the whole of the sum obtained by selling the stolen car. The offences were committed when the appellant was in a vulnerable position. He had lost all his money through no fault of his own, he was out of work and a young family depended upon him. Eventually he obtained a position with an employer who thought well of him.
[1](1982) 8 A.Crim.R. 262 at 265.
The sentencing judge apparently took the view that the nature and extent of the criminal activities of the appellant precluded any course other than immediate incarceration. The judge described the activities as "significant" and "extensive". Those terms were appropriate to describe a major criminal enterprise constituted by a steady business of disguising and trading in stolen cars. In taking that approach I think that the sentencing judge erred. The material before the sentencing judge disclosed that in August 1998 the appellant stole a Holden which he sold in February 1999, that between August 1998 and March 1999 the appellant stole another Holden and in the same period handled a relatively small number of stolen parts. That was not a business which was either extensive or significant. I do not think that an inference could properly be drawn from those facts that the appellant was engaged upon a major criminal enterprise.
The maximum penalty for handling stolen goods is 15 years' imprisonment, while the maximum penalty for theft is 10 years' imprisonment. The sentencing judge imposed sentences for handling a small number of not very valuable articles which were double the length of the sentences which he imposed for the theft of two motor cars. In my opinion, while the view of the legislature that in general terms handling is more serious an offence than theft must be taken into account, the sentences imposed in respect of the handling counts were manifestly excessive, and that is shown, in my view, by the sentences imposed in respect of the theft counts.
In my opinion the gravity of the offences was not so great as to overwhelm the benefit which the appellant could claim for his good character, his plea of guilty and his personal circumstances. I consider that the mitigating factors present in this case render it appropriate to suspend part of the sentence. Accordingly I would propose that the sentence be set aside and that the appellant be re-sentenced to a term of 12 months' imprisonment on each of counts 1, 3, 4 and 5 and to a term of two years' imprisonment in respect of count 2. I would cumulate three months of the sentences on each of counts 3, 4 and 5 upon count 2 and each other, producing a total effective sentence of two years and nine months' imprisonment. I would suspend two years of that sentence for a period of two years.
WINNEKE, P.: I agree.
VINCENT, J.A.: I agree.
WINNEKE, P.: The formal order of the Court is as follows:
The appeal is allowed. The sentences imposed by the judge below are quashed and in lieu thereof this Court imposes the following sentences: on counts 1, 3, 4 and 5 - sentences of one year's imprisonment; on count 2 - a sentence of two years' imprisonment. We cumulate a period of three months of each of the sentences imposed on counts 3, 4 and 5 upon each other and upon the sentence imposed in respect of count 2. The total effective sentence will therefore be one of two years and nine months. The Court directs that two years of that sentence be suspended for a period of two years from today's date.
We declare that eight months and seven days of that sentence has already been served.
Mr Konsol, that means that within a fairly short period of time in the future you will be eligible for release from incarceration, but it means that there will be hanging over your head a suspended sentence for a period of two years. Do you understand that?
APPELLANT: Yes.
WINNEKE, P.: That means that if you commit any offence in that period of two years starting from today's date which is punishable by imprisonment, you will be liable to come back before the Court for breach of the suspension order that we have made and be dealt with both for the offence that amounts to the breach and also for sentence in respect of the period which has been suspended. Do you understand that?
APPELLANT: I understand.
WINNEKE, P.: So you are effectively on good behaviour for the next two years, and if you breach the Court's faith in you in respect of that period you will be dealt with accordingly. Do you understand that?
APPELLANT: I understand.
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