Regina v Reid

[2000] NSWCCA 270

CITATION:	Regina v Reid [2000] NSWCCA 270
FILE NUMBER(S):	CCA 60654/98
HEARING DATE(S):	Monday, 19 June 2000
JUDGMENT DATE:	19 June 2000
PARTIES :	The Crown Robert Bruce Reid
JUDGMENT OF:	Grove J at 24; Newman J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/41/0210; 96/41/0093
LOWER COURT JUDICIAL OFFICER :	Howie DCJ
COUNSEL :	P G Berman (Crown) J S Andrews (Appl)
SOLICITORS:	S E O'Connor (Crown) T A Murphy (Appl)
CATCHWORDS:	Criminal law - receiving - severity of sentence
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Rv Phillips, unreported, CCA, 11 December 1991 R v Phelan (1993) 66 A Crim R 446 at 449
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60654/98

GROVE J
NEWMAN J

MONDAY, 19 JUNE 2000

REGINA v Robert Bruce REID

JUDGMENT

1    NEWMAN J: This is an application for leave to appeal against a sentence imposed by his Honour Howie DCJ at the Sydney District Court following a trial at Wollongong on 26 October 1998.

2    The applicant had been indicted on eight counts of receiving, those counts of receiving involved motor vehicles, and the eight counts involved in each instance separate motor vehicles. In the event the jury found the applicant guilty of seven of those counts and not guilty of the eighth.

3 The crime of receiving, pursuant to s 188 of the Crimes Act 1900, carries a maximum penalty of ten years penal servitude. His Honour Howie DCJ sentenced the applicant to a head sentence of six years constructed of a minimum term of four and a half years and an additional term of eighteen months.

4    The objective facts of the matter as found by his Honour involved the applicant carrying on a business on his property on the outskirts of Goulburn of receiving stolen vehicles and re-selling those vehicles, or parts of them, after he had taken steps to disguise their identity.

5    The Crown case was that he had purchased wrecked or damaged vehicles so that he could use their identification plates on stolen vehicles. That involved, of course, processes such as re-stamping of identification plates; it involved the preparation of fraudulent receipts and other documents relating to the vehicles that he had purchased. In other words, the applicant was convicted of carrying out a considerable criminal enterprise.

6    It should be said at once that this Court has in the past indicated that those who are convicted of receiving should expect to receive condign punishment. The old adage, that without receivers there would be few thieves, has received support in this Court.

7    In R v Phillips, unreported, Court of Criminal Appeal, 11 December 1991 Lee AJ, with whom Gleeson CJ and Clarke JA agreed, observed:

"The matter of receiving is one which is always accompanied by a strong element of deterrence in punishment. Receiving is regarded by the legislature as more serious than the ordinary class of larceny. A penalty of penal servitude for ten years is provided in the case of receiving; five years in the case of larceny. The purpose, of course, behind that policy is that if the receivers are prevented from performing their unlawful acts, larceny, it is thought will thereby be discouraged."

8    As I have said the objective facts here indicate that the applicant, in relation to the seven counts of which he was convicted, was carrying on a considerable criminal enterprise of receiving. This was certainly no one-off situation.

9    Before his Honour were placed a number of subjective circumstances. The principal being the applicant's health. The applicant in fact gave evidence that he had been suffering at the time he gave evidence from osteoarthritis in just about every joint in his body, was on medication for that condition; he also suffered from asthma and bronchitis. A certificate was tendered before his Honour from a Dr Harmon, general practitioner, of Goulburn in which the applicant's complaints, to which he had deposed before his Honour, were confirmed. I should have added that he also suffers from the ophthalmic condition of glaucoma.

10    His Honour adverted to the matter of the applicant's health in his remarks on sentence. He also adverted to the ill health suffered by the applicant's present wife, she having suffered from pulmonary conditions, namely a heart condition, and had a stroke.

11    The thrust of the argument presented both in written submissions and in oral argument before this Court this morning was that his Honour erred in not giving sufficient weight to the applicant's health problems, nor to the fact that the applicant had not been to prison before. A further factor raised in aid was the delay which had occurred in bringing the matters before the court which had ultimately resulted in a substantial change of attitude on behalf of the applicant.

12    It should be noted that his Honour when dealing with the applicant's past criminal record which, while in terms of criminal records which are presented before the courts of this State daily, is not of great significance, his Honour took into account that there had been no dishonesty offences since 1992 and that the assault matters which occurred in the applicant's record were not of significance.

13    In my view his Honour properly recorded the applicant's past history when passing sentence and fell into no error. He also took into account the applicant's health in passing sentence. The subject of the applicant's health was raised particularly in relation to his Honour's specific finding that he could not find special circumstances in the present case. I shall advert to that submission later in my reasons.

14    The delay did not result in the applicant being incarcerated until he had been convicted by the jury on 7 August 1998. He had been arrested on 28 June 1995 then released on bail on the same day. In other words the delay which occurred had no onerous effect upon the applicant in terms of incarceration and while the fact that he pleaded not guilty cannot reflect in any way on any increase in sentence, it is an explanation of delay because of the condition of the lists in Wollongong at the time. In my view no error has been indicated on his Honour's part in relation to the question of delay.

15    I then turn to the question of special circumstances. As I have said his Honour having turned his mind to the question of circumstances found that there was none to justify altering the statutory ratio between the minimum and additional terms as set by the Sentencing Act as it then stood.

16    His Honour indicated that he had no admission by the applicant of why he committed the offences; his Honour knew nothing about the circumstances which had led the applicant to commit them. His Honour in fact found that the only conclusion he could come to was that the crimes were committed as a matter simply of greed.

17    In turning his mind to the question of special circumstances his Honour could find nothing which would require a longer additional term than otherwise required by the Sentencing Act, as it then stood, for the rehabilitation of the applicant.

18 While the category of subjective features which might give rise to a finding of special circumstances is perhaps impossible to categorise precisely, it is the fact that rehabilitation of a person convicted is a matter which the courts have concentrated upon in the past in dealing with special circumstances. See what fell from this Court in R v Phelan (1993) 66 A Crim R 446 at 449.

19    It was submitted, as I have indicated earlier, that the applicant's health was a matter which should have led his Honour to find special circumstances, accordingly in so doing his Honour fell into error. His Honour did take into account the applicant's health when setting the sentence.

20    It seems to me that in the absence of any other matters his Honour, having considered the matter of special circumstances and having taken into account the applicant's condition of health and also his wife's, in determining the head sentence did not fall into error in further taking the matters into account in determining the ratio between the minimum term and the additional sentences.

21    It was conceded that while it was submitted that the sentence was at the top of the range, it was not without the range of sentences available for the crimes in question.

22    In my view no error has been demonstrated in his Honour's approach to sentence, nor having regard to the nature of the offences, that the sentence imposed was manifestly excessive.

23    Accordingly, it follows that I am of the view that the applicant cannot succeed. Because of the seriousness of the matter and having regard to the applicant's age, he is now in his 50s, I would grant leave to appeal but I would dismiss the appeal.

24    GROVE J: I agree. The orders of the Court, therefore, will be as proposed by Newman J.