R v Newham - [2000] VSCA 138

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 309 of 1999

THE QUEEN

GARY JOHN NEWHAM

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JUDGES:	ORMISTON, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2000
DATE OF JUDGMENT:	25 July 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 138

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CRIMINAL LAW - Sentencing - Handling - Single count covering
2½ years - Large number of items (set out in 82-page schedule) found on appellant's premises, worth $160,000 - Goods bought, and sold or sold on commission at hotels and building sites over long period - Appellant co-operative but no "useful" information given to police - Dispute as to facts not raised in grounds – Weight to be given to guilty plea, rehabilitation, lack of prior convictions and co-operation - None made out - Sentence of 5 years (minimum 3½ years) not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr D.E. Risstrom	Victoria Legal Aid

ORMISTON, J.A.:

The appellant has been granted leave to appeal against a sentence imposed on him on 3 December last year in the County Court. He is now aged 41 years but at the time of the offending, between June 1994 and February 1997, he was aged between 35 and 38 years. On 8 December 1997 he was committed for trial in the County Court on a single charge of handling stolen goods contrary to s.88(1) of the Crimes Act 1958 and he reserved his plea. I should mention that the form of the count which now comes before the Court is a single count expressed in terms that the appellant, between 9 June 1994 and 23 February 1997, dishonestly received certain stolen goods, and then is set out over the succeeding ten lines a description of a large number of items, such as kitchenware, sound equipment, electrical equipment, photographic equipment, compact discs, tools, model motor cars, answering machines and things of that kind.

During the course of argument I suggested to counsel that this seemed to be a representative or sample count. It is of no particular concern and is not a matter about which counsel sought to persuade the Court that one view or the other was significant for the purpose of this appeal. But in a sense, since it is a single count covering an extended period, it is not strictly either a representative or a sample count but is a count which purports to cover the whole of the activity of the appellant as a handler of goods, as the count says, "knowing or believing the same to be stolen goods", for the period in question and it is intended to cover all the goods with which he dealt during that time. If it were, of course, a matter which had gone to trial, then, although I express no final view on it, it was a count to which the appellant might have taken objection on the ground of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Newham

Details

AGLC: R v Newham [2000] VSCA 138
Case: [2000] VSCA 138
Decision Date: 25 July 2000

CaseChat Overview and Summary

In the matter of R v Newham, the appellant faced sentencing following his conviction for handling stolen property. The dispute centred on the appropriate sentence for the appellant who had a large number of stolen items, collectively valued at $160,000, found on his premises. The items were outlined in an 82-page schedule and had been acquired, sold, or sold on commission at hotels and building sites over a substantial period. The appellant was cooperative during the investigation but did not provide any useful information to the police.

The court was required to determine the appropriate sentence, taking into account various factors. These included the weight to be given to the appellant's guilty plea, his level of rehabilitation, the absence of prior convictions, and his cooperation with the police. The appellant argued that these factors warranted a more lenient sentence. However, the court had to assess whether these mitigating factors were sufficient to warrant a departure from the usual sentencing guidelines.

The court considered the totality of the circumstances, including the significant value of the stolen goods and the appellant's extensive involvement in the handling of stolen property. It concluded that while the appellant's cooperation and lack of prior convictions were noted, they did not sufficiently outweigh the gravity of the offence. The court imposed a sentence of 5 years imprisonment with a non-parole period of 3½ years, determining that this sentence was not manifestly excessive.

The final orders included a custodial sentence of 5 years, with a non-parole period of 3½ years. The court's decision was based on a comprehensive assessment of the appellant's conduct, the nature of the offence, and the relevant sentencing principles.

Orders