Sullivan v R; Skillin v R - [2008] NSWCCA 296

New South Wales
Court of Criminal Appeal

CITATION: Benjamin Daniel SULLIVAN v R, Andrew James SKILLIN v R [2008] NSWCCA 296

HEARING DATE(S): 03/12/2008

JUDGMENT DATE:
11 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Howie J at 3

DECISION: In respect of both applicants leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Appeal against sentence - Disposing of stolen goods - vehicle re-birthing - whether discount for plea sufficient - effect of delay before trial - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - s 188

CATEGORY: Principal judgment

CASES CITED: Mason v The Queen [2007] NSWCCA 32
R v SY [2003] NSWCCA 291
R v Dib [2003] NSWCCA 117
Johnson v The Queen [2004] HCA 15
R v Todd (1982) 2 NSWLR 517
Mill v The Queen (1988) 166 CLR 59
R v V (1998) 99 A Crim R 297
R v Darwiche [1999] NSWCCA 293

PARTIES: Benjamin Daniel Sullivan v R, Andrew James Skillin v R

FILE NUMBER(S): CCA 2007/00005671002; 2007/00005674002

COUNSEL: P Calvert - Crown
P. Rowe - Applicant Sullivan
P Maiden SC - Applicant Skillin

SOLICITORS: S Kavanagh - Crown
G R Walters - Applicant Sullivan
H Weller - Applicant Skillin

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/61/0060

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 16/11/2007

2007/00005671002
2007/00005674002

McCLELLAN CJ AT CL
GROVE J
HOWIE J
THURSDAY 11 DECEMBER 2008

Benjamin Daniel SULLIVAN v R

Andrew James SKILLIN v R

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 GROVE J: I agree with Howie J.

3 HOWIE J: These are applications for leave to appeal against sentences imposed in the District Court by Sweeney DCJ (the Judge). The applicants each pleaded guilty to a number of offences of disposing motor vehicles contrary to s 188 of the Crimes Act 1900. Each offence carried a maximum penalty of imprisonment for 12 years. Each offence involved, what is commonly called, re-birthing a motor vehicle by changing the identifying marks on a stolen vehicle with those of another vehicle and then selling the stolen vehicle to an innocent member of the public.

4 The applicant Sullivan was sentenced for six offences and asked the Judge to take a similar offence and a firearm offence into account on a Form 1. As a consequence the applicant was sentenced to an overall term of imprisonment of 5 years with an overall non-parole period of 3 years 3 months. He is eligible to be released to parole on 21 January 2011.

5 The applicant Skillin was sentenced for five offences and asked the Judge to take a similar offence into account on a Form 1. He was sentenced to an overall term of imprisonment of 4 years with an overall non-parole period of 2 years 6 months. He is eligible to be released to parole on 15 May 2010.

6 Each applicant was…

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.

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Details

Case: [2008] NSWCCA 296
Decision Date: 11 December 2008

CaseChat Overview and Summary

In Sullivan v R and Skillin v R, the High Court of Australia was asked to review the sentences of two appellants who had been convicted of disposing of stolen goods, specifically a vehicle that had been re-birthed. The appellants argued that their sentences were excessive, taking into account the discounts they received for entering early pleas of guilty. The question before the court was whether the sentences imposed were manifestly excessive, considering the discounts for pleas and the delay before the trial.

The court considered the principles of sentencing for such offences, emphasising the importance of proportionality and deterrence. The appellants contended that the delay in bringing their case to trial, coupled with the discounts for their early pleas, should have significantly reduced the severity of their sentences. The court had to determine whether the sentences, when viewed in light of these factors, were excessive. This required an analysis of the circumstances of the offence, the appellants' culpability, and the impact of the delay and plea discounts.

The court found that, despite the delay and the plea discounts, the sentences were not manifestly excessive. It held that the trial judge had appropriately balanced the need for deterrence with the principles of proportionality. The court acknowledged the appellants' early pleas and the delay in the proceedings but concluded that these factors, while relevant, did not render the sentences excessive. The court emphasised the seriousness of the offence, particularly the re-birthing of a stolen vehicle, and the need to maintain public confidence in the criminal justice system.

The final orders of the court were to dismiss the appeals against sentence. The court confirmed that the sentences were appropriate and not manifestly excessive, considering all relevant factors. This decision underscored the importance of a balanced approach to sentencing, taking into account both the need for deterrence and the principles of fairness and proportionality.

Orders