R v Walden - [2001] NSWCCA 365

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Walden [2001] NSWCCA 365 revised - 8/10/2001

FILE NUMBER(S):
60259/01

HEARING DATE(S): 14/9/01

JUDGMENT DATE: 14/09/2001

PARTIES:
Regina
Brian Joseph Walden

JUDGMENT OF: Sully J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/61/0072, 00/61/0011

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
G E Smith (Crown)
P J D Hamill (Applicant)

SOLICITORS:
S E O'Connor (Crown)

CATCHWORDS:
Sentencing - appeal against severity (2)- obtain money by deception -receiving (2) - extent of loss to owners/insurers not established at trial - alleged failure of trial judge to consider principle of totality.

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

- 6 -

IN THE COURT OF

CRIMINAL APPEAL

60259/01

SULLY J
CARRUTHERS AJ

Friday 14 September 2001

Regina v Brian Joseph Walden

JUDGMENT

SULLY J: I will ask Mr Acting Justice Carruthers to deliver judgment.
CARRUTHERS AJ: Brian Joseph Walden seeks leave to appeal against sentences imposed upon him by his Honour Judge Gibson QC at the Bathurst District Court on 23 April 2001 when the applicant pleaded guilty to an indictment containing four counts. The first and third counts charged offences of obtain money by deception under s 178BA(1) of the Crimes Act 1900, which carries a maximum penalty of 5 years imprisonment.
The second count was under s 188 of the Act, a count of receiving stolen property, which offence carries a maximum penalty of 10 years imprisonment.
The fourth count was one of receiving goods out of New South Wales under s 189A (1) of the Act, which offence carries a maximum penalty of 10 years imprisonment.
The offences were committed over the period between 4 December 1996 and 27 October 1998.
With regard to counts 1 and 3, his Honour sentenced the applicant on each count to a fixed term of 15 months imprisonment to commence on 23 April 2001 and to expire on 22 July 2002.
With respect to count 2, his Honour sentenced the applicant to 29 months imprisonment with a non-parole period of 2 years to commence on 23 April 2001 and to expire on 22 April 2003.
With respect to count 4, his Honour sentenced the applicant to 32 months imprisonment with a non-parole period of 2 years to commence on 23 April 2001 and to expire on 22 April 2003.
Thus, the effective sentence overall is that of 32 months imprisonment with a non-parole period of two years, his Honour taking the view that there were no special circumstances.
The applicant was born on 8 December 1952. He is married with two children, one of whom, unfortunately, has a very serious permanent illness.
His criminal record dates back to 6 April 1970. Two matters in that prior criminal record merit attention. On 29 June 1994, at the Sydney District Court, the applicant was convicted of receiving stolen property outside New South Wales. Sentence was deferred on his entering a recognisance, self in the sum of $3,000 to be of good behaviour for three years. Thus, that recognisance was still current at the time the first of the subject offences was committed.
Later, on 16 September 1998, at the Lithgow Local Court, in relation to a conviction for steal motor vehicle, the applicant was sentenced to four months periodic detention and ordered to pay compensation.
The applicant, at the time of the subject offences, owned a small business manufacturing metal components used in the concrete industry. The business employed four full-time staff and the applicant's younger son. The business was in dire financial straits at the time of the commission of the subject offences.
Very briefly stated, the money he obtained by deception offences involved the applicant being associated with the making of false claims against an insurance company on the pretence that vehicles with which he had some connection were in fact stolen. The applicant's wife was involved, to his knowledge and encouragement, in the first of these offences.
Vehicles to the value of some $80,000 in aggregate were involved.
The second and fourth counts related to the applicant's involvement in the reberthing of two stolen prime movers. In relation to the vehicle that was the subject of the fourth count, the applicant purchased this vehicle but declined to inform the investigating police officers who sold it to him. In this regard his Honour said:
"I can understand why he says that it would be a dangerous thing and it may well be. But whilst people are prepared to buy stolen goods that are not prepared to do anything about who the thief was, then they cannot expect much sympathy from the courts.
He does not give any thought when he buys these vehicles to where they might have come from and who he might have been disadvantaging as a result of what his conduct was.”
His Honour then allowed a discount of some 20 percent in relation to the pleas of guilty.
The applicant relied upon the following matters in support of his contention that the sentences are manifestly excessive. In relation to the receiving counts, it is contended that there was no evidence to suggest that the applicant was part of any systematic ring involving the reberthing of stolen cars with a view to selling them to unsuspecting purchasers. On the contrary, it is argued that the evidence was that the applicant purchased the cars to use in his trucking and transport business and at the time of his arrest he was in possession of the items.
Next it is contended that there was no evidence of the extent, if any, of the actual loss to the owners and/or insurers. It is submitted that sentences of the severity imposed in the instant case ought to be reserved to cases where there is established actual loss on the part of the original owner, insurer or the ultimate purchaser of the vehicle.
Then it is contended that his Honour failed to apply the principle of totality in the circumstance that the applicant was sentenced on 16 September 1998 for an offence of stealing a motor car. This offence, it is said, was about the time that the subject offences were committed. It is submitted that his Honour ought, in the circumstances, to have taken into account the fact of the previous sentence of four periodic detention and considered what would have been an appropriate sentence had the matters all been dealt with at the same time.
Reliance was here placed upon the judgment of the High Court in Mill v The Queen (1988) 168 CLR 599, particularly at page 666.
Rather than adopting this approach, it is said that his Honour appears to have taken the previous offence into account to assist in his conclusion that the applicant's prior record prevented him getting the type of mitigation that a person with less convictions would have obtained.
As to the subjective case, reliance was placed upon the applicant's voluntary involvement with disadvantaged and sick children.
I have difficulty in concluding that this was a Mill-type case. The point should also be made that the offences were aggravated by the fact, in the first instance, that the applicant was still on a 3 year recognisance.
That is a significant aggravating factor. However, the insuperable difficulty which the applicant faces, are the very serious objective circumstances giving full weight to every point that has been raised on his behalf by Mr Hamill's diligent researches and painstaking appraisal of the sentencing remarks of his Honour.
These sentences were well within the sentencing range which was available to his Honour. Indeed, giving full weight, as I have said, to the arguments of Mr Hamill the sentence must be recognised as being more toward the lower and lenient end of the spectrum. His Honour was perfectly entitled to impose the sentences which he did and, in my opinion, omitting his somewhat critical remarks of the applicant, the sentence reflected a degree of leniency and consideration for the applicant's subjective circumstances which cannot be the subject of criticism.
Personally I would hesitate about granting leave to appeal, but in all the circumstances I propose that leave be granted and the appeal be dismissed.
SULLY J: I agree. The orders will be as announced by Mr Acting Justice Carruthers.

ooOoo

LAST UPDATED: 08/10/2001