R v Misura

[1994] QCA 181

IN THE COURT OF APPEAL [1994] QCA 181

SUPREME COURT OF QUEENSLAND

C.A. No. 91 of 1994

Brisbane
[R. v. Misura]

BETWEEN

T H E Q U E E N
v.
DAVID ALEXANDER MISURA

(Applicant)

Fitzgerald P.
McPherson J.A.

Shepherdson J.

Judgment delivered 31/05/94
Joint reasons for judgment by Fitzgerald P. and McPherson J.A.
Separate reasons by Shepherdson J. differing as to order.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IN RESPECT OF THE COUNT OF RECEIVING REDUCED TO 3 YEARS. ALL OTHER SENTENCES AND THE RECOMMENDATION FOR PAROLE TO REMAIN UNCHANGED.

CATCHWORDS: CRIMINAL LAW - SENTENCE - RECEIVING - Whether head sentence of 6 years excessive - 20 years old - Extensive criminal record - Full time employment - Probation not previously successful.

Counsel:R. Lynch for the applicant

P. Callaghan for the respondent

Solicitors:  Legal Aid Office for the applicant

Director of Prosecutions for the respondent
Hearing Date: 20 May 1994

JOINT REASONS FOR JUDGMENT - FITZGERALD P. & McPHERSON J.A.

Judgment delivered the Thirty-First day of May 1994

This is an application for leave to appeal against sentences imposed on the applicant when he pleaded guilty in the District Court to a charge of receiving, two charges of unlawfully using motor vehicles, and to breaching a probation order. The concurrent sentences imposed were imprisonment for 6 years for the receiving; 2 years on each of the unlawful use charges; and six months in the case of the breach of probation.

The judge also made a recommendation that the applicant be considered for parole after serving 9 months of the sentence of imprisonment imposed in respect of the first three charges.
The circumstances of the offences can be briefly stated as follows. In the case of count 1, an amount of some $11,000 worth of stolen property was found at the applicant's residence including $7,500 worth of diamond rings, a video recorder, two battery guards, electrical converters, a wristwatch, and a camera. The applicant told police that these items had been brought to his residence by a friend about six days earlier and that he had agreed to sell them off in exchange for a commission. Count 2 was the first of the two motor vehicle offences. It was committed when the applicant took a Toyota hatchback, which was the property of his former girlfriend, from the driveway of her home. It was later involved in an accident and sustained damage to the extent of over $3,500.

With respect to count 3, which was the second motor vehicle offence, the applicant's fingerprints were found on a vehicle which had been parked at and then stolen from Victoria Park during the Exhibition in August 1991. It was later recovered in a damaged condition, the extent of the damage being assessed at some $10,000.

Count 4 arose from the applicant's being placed on probation for 2 years in January 1992 for an offence of breaking, entering and stealing. The probation was later extended by a further 2 years in November 1992. The original offence involved the breaking and entering of a pharmacy at Stones Corner and the stealing of $11,722.86 worth of cash and drugs.

The applicant was only 20 years old when sentenced, but he already had an extensive criminal record. He was first convicted on 14 May 1991 of unlawful use of a motor vehicle; on that occasion he was placed on probation for 18 months, with an order that he perform community service for 60 hours. On 31 January 1992 he was convicted of the offence of breaking, entering and stealing already referred to, and was admitted to probation for a period of 2 years. That offence is said to have been committed on the day before the unlawful use conviction on 14 May 1991.

On 30 July 1992 the applicant was convicted on another count of unlawful use of a motor vehicle committed on 26 March 1992. On that occasion he was fined and restitution was ordered. On 13 November 1992 proceedings were instituted in the magistrates court and the District Court for breach of the probation order imposed on 31 January 1992 for the break and enter offence. The result was that the probation order made on 31 January 1992 was discharged and a new order for probation for 2 years was imposed. Further, on 18 November 1992 the applicant was convicted and sentenced to 160 hours of community service for breach of the probation order imposed on 14 May 1991 for the unlawful use offence already described. Since then he has been convicted in the magistrates court of a further two charges of possession of a dangerous drug, once on 27 August 1993 and again on 28 September 1993.

The fact that the applicant was only 20 years old at sentence and was said to be in full time employment were matters that militated against imposing a prison sentence. On the other hand it is plain that efforts to rehabilitate him using probation and like means have not succeeded after being tried on at least three occasions in the past. It is candidly acknowledged that there was no real option for the sentencing judge but to impose a term of imprisonment. The only complaint now is that the duration of the head sentence of 6 years imprisonment for the receiving offence (count 1) was excessive.

The offence of receiving has always been regarded as serious, and the charge on which the applicant was convicted was by no means a minor instance of its kind. From the jewellery and goods received it begins to look very much as if the applicant is now set for a place among the league of professional criminals. The most that can be said in his favour is that he says he had received the stolen items only about a week before the police discovered them. Taking all these matters into account, it nevertheless seems to us that a sentence of imprisonment for six years for a first offence of this kind is substantially more severe than other sentences imposed for instances of this offence committed by older men convicted of receiving property of greater value.

A number of these decisions were recently reviewed by this Court in R. v. Highlands (C.A. No. 79 of 1992, unreported 27 July 1992). Among those discussed were Barns (C.A. No. 290 of 1988, unreported, 5 April 1989), where the value of the goods stolen was $100,000 and the sentence was imprisonment for 3 years coupled with a period of probation. In Hiratos (C.A. No. 117 of 1990, unreported, 23 August 1990) there were 16 counts, the value of the property in one count alone being more than $25,000. The sentence in that instance was imprisonment for 4 years. In both Barnes and Hiratos the offenders were much older men than the applicant in this case. In Highlands itself a sentence of 10 years for 26 counts of receiving goods valued at some $40,000 was reduced to 6 years, with a recommendation for parole; in that case the applicant was also sentenced for a further offence involving drugs.

Considering the present sentence against this comparative background, we consider that the period of 6 years imprisonment imposed on the applicant as the head sentence in respect of the receiving offence in this case must be regarded overall as excessive. It is twice the length of the sentence imposed in Barns and two-thirds more than that imposed in Hiratos. It is the same as the sentence imposed in Highlands in respect of 26 counts of receiving. It follows that the appeal should allowed.

The sentence in respect of count 1 should be reduced to 3

years. The recommendation for parole will not be affected.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 31/05/1994
In this application for leave to appeal against sentence, I
accept the facts stated by Mr Justice McPherson.

The argument on the application for leave to appeal against the sentences was aimed at the sentence of six years imprisonment with a recommendation for eligibility for parole after serving 9 months of the sentence imposed for the receiving offence. This sentence which was imposed on 18 February 1994 was said to be manifestly excessive.

It is true that in R. v Highlands (C.A. 79 of 1992 (unreported) 27.7.1992) this court reviewed a number of decisions in which sentences had been imposed for receiving. Highlands appears to be the benchmark by which sentences for receiving offences are presently being measured.
On reading Highlands I have the clear impression that this court, when reviewing earlier decisions, focused on the value of the property received in each case.
In my respectful view the value of the property received is but one matter to be taken into account by a sentencing judge. A most material matter in a receiving case is the circumstances in which the property has been received.
I find the following passage in the decision of the Court of Criminal Appeal (Lucas J., Hoare J., W.B. Campbell J. (as he then was)) in R. v. Bedington (1970) Qd.R 353 at p.363 helpful in deciding the outcome of this application:-

"The crime of receiving has always been regarded as a very serious offence. There are a number of reasons for this, one of them being that, as stated by Cullen C.J. in R. v. Ragen (1916) 33 W.N. (N.S.W.) 106, in the New South Wales Court of Criminal Appeal: "The legislature has marked out the crime of receiving as more heavily punishable than that of stealing, because the receiver is the carefully concealed instrument which makes theft on a wholesale scale possible."

It is an incorrect approach when considering an appropriate sentence for receiving to consider merely the articles received and if they are not of substantial value to regard the offence as somewhat venial. While it is entirely true that the value of the property received is relevant so that if the value is high that is an aggravating circumstance, it does not always follow that, because the value of the property is comparatively low, the offence is not serious. The provisions of s. 433 of the Criminal Code draw a clear distinction between property received in consequence of an act which constituted a crime and property received in consequence of an act which was not a crime. In the former case - and that is the one with which we are concerned here - the maximum punishment is fourteen years' imprisonment with hard labour.

A moment's reflection will indicate that this legislative provision is founded on sound common sense. The offence of receiving the same property which has been obtained by means e.g. of an armed hold-up in which some innocent person lost his life is a far more serious offence than receiving the same property after it was stolen e.g. from an open motor car.

Approached in this way, it becomes apparent that the circumstances under which property received had been obtained are most material. In the present case there had been an armed hold-up of a bank and the property which the appellant received constituted part of the proceeds of this armed robbery. No perpetrator of the armed robbery has been convicted. The man Stokes with whom the appellant had been associated was indicted and was found not guilty. Whether or not Stokes was the actual bank robber is immaterial. It is, of course, sociologically undesirable that the actual perpetrator of an armed hold-up should go scot free but there is no reason on that account why a person convicted of receiving part of the proceeds of the armed hold-up should be treated leniently."

Bedington had been charged jointly with a man named Stokes with the crime of armed robbery from a bank of a large sum of money and two revolvers. Bedington was also charged in the same indictment with receiving the two revolvers and $23.00 the property of the bank knowing such property to have been stolen.

Separate trials were ordered. Bedington was acquitted on the charge of armed robbery, but found guilty of the crime of receiving for which he was sentenced to five years imprisonment with hard labour.
In Bedington the court (at pp. 362-3) described this as a
heavy sentence for receiving articles of comparatively small

value and a small amount of money but not manifestly excessive.

Bedington had a bad criminal record.

In my respectful view, a judge called on to sentence a person for receiving, (s.433 of the Criminal Code) must consider all material circumstances including those in which the property obtained had been received and the value of the property although in my respectful view the value must not be allowed to assume too great importance as Bedington shows.

On sentence, once value is allowed too much importance the element of receiving the stolen property may be pushed too far into the background and the crime then becomes too readily equated with stealing and as the cases show receiving is more heavily punishable than stealing.

In the present case, the learned sentencing Judge in his sentencing comments treated count 1 as "a serious example of the offence of receiving". This view appears to be quite correct considering that some of the goods were rings to the value of about $7,500 still in their display pad and marked with retail prices.

The learned sentencing Judge's comments relating to the sentence on count 1 do not show any reason to interfere with that sentence; however if this court should conclude that upon the facts the sentence is unreasonable or plainly unjust it may interfere (House v. The King (1936) 55 CLR 499 at pp.504-5). In that event, although the nature of the error made by the learned sentencing Judge cannot be discovered, this court reviews the exercise of the sentencing discretion on the ground that a substantial wrong has in fact occurred.

In my view, for this applicant who was aged 20 years and 3 months at the time of sentence, a sentence of 6 years imprisonment with a recommendation that he be considered for parole after serving 9 months of that sentence for this offence of receiving - and this was the first occasion when he had been sentenced to jail - was unreasonable. I say that despite the applicant's poor criminal history at the time of sentence. I would allow the application, set aside the sentence on count 1 of 6 years with a recommendation for parole after serving 9 months and in lieu sentence him to a term of imprisonment of 4 years to take effect on and from 18 February 1994 and order that he be eligible to be considered for parole after having served 9 months of that sentence.