Banks v R [2005] ACTCA 10

The maximum penalty for an offence of burglary is 14 years’ imprisonment. The maximum penalty for possession of housebreaking implements is 3 years’ imprisonment and that for the possession of stolen property is also 14 years’ imprisonment.

A further offence of possessing goods reasonably suspected of being stolen was taken into account pursuant to a schedule under s 357 of the Crimes Act 1900 (ACT).

His Honour proceeded to sentence the appellant to a term of 5 years’ imprisonment in respect of the offence of possession of stolen property. He imposed a non-parole period of 3 years and ordered that the non‑parole period be backdated to 31 October 2002. The offence of possessing goods reasonably suspected of being stolen was taken into account in the determination of the sentence for the offence of possessing stolen property and no further penalty was imposed in relation to that additional offence.

His Honour also imposed a sentence of 1 years’ imprisonment for the offence of burglary and a sentence of 3 months’ imprisonment for the possession of housebreaking implements but ordered that each of those sentences be served concurrently with the sentence imposed for possession of stolen property.

The appellant now seeks to challenge the sentence as being manifestly excessive. Whilst no specific error of fact or principle is suggested, it has been contended by Ms Warwick, who appears on behalf of the appellant, that the sentence and, in particular, the non-parole period is so markedly excessive as to be, of itself, demonstrative of error.

It need scarcely be said that the offence of possessing stolen property is a very serious offence, especially when it involves a large number of items that have been stolen on many occasions, as the facts indicate in this case.

It has been repeatedly said that the existence of “fences” encourages the commission of theft, even more serious offences of dishonesty such as burglary. Accordingly a court must regard offences of this character as serious offences.

In the present case, there were a number of objective factors that his Honour was obliged to take into account. These included the number and value of the goods in question; the fact that the goods had been taken from a large number of victims over an extended period of time; the fact that the acts of receiving which led to his possession appeared to have been systematic and to have occurred over an extended period, and the fact that the motivation for the offence seems to have been simple greed.

His Honour recognised the need to take into account the subjective circumstances of the appellant and correctly identified the need to take into account the fact that the appellant had pleaded guilty. His Honour adverted to the fact that the appellant had a criminal record, but correctly observed that there had been no offences for some years. His Honour seems to have been well aware of the subjective factors that were relevant.

During the course of the appeal before us, Ms Warwick urged us to grant leave for the appellant to adduce fresh evidence directed to two issues. Firstly, she sought to rely upon material that had been presented during earlier bail applications, and related to his family’s circumstances. Sadly, it appears that the appellant’s mother has substantial health difficulties and that his son has displayed some behavioural problems. It was also suggested that the appellant may be experiencing some financial hardship, that his former wife’s grandmother has a terminal illness, and his grandfather died in May 2004. Secondly, she sought to rely upon fresh evidence related to his completion of training courses whilst in custody, both during periods of remand and subsequent to the sentence. So far as the material presented during bail application is concerned, it seems clear that this material was not only well known to the parties but, it was suggested, also well known to his Honour. It does not seem to us that any prejudice has been suffered by the omission to formally tender this material during the sentencing proceedings. Indeed, Ms Warwick conceded that she was not suggesting that his Honour had erred either in failing to have regard to information to which he should have had regard or, conversely, by having regard to material that he should not have taken into account.

Insofar as the second type of material relates to courses completed or undertaken during periods of remand, that material was obviously well know to the appellant and could have been adduced in the proceedings before his Honour. Insofar as it relates to the completion of courses or the undertaking of courses after sentencing, it seems to me that it would be inappropriate for us to consider that material since it would obviously be incapable of demonstrating that his Honour fell into appealable error.

Having considered Ms Warwick’s submissions carefully, and also examined his Honour’s reasons for judgment, I can find no error of fact or principle and I am not persuaded that the sentence imposed upon the appellant in this case fell outside the range of discretion reasonably available to his Honour or that it was indicative of any error of approach. For these reasons I would dismiss the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.