Benjamin Daniel SULLIVAN v R, Andrew James SKILLIN v R

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.

Mason v The Queen [2007] NSWCCA 32 R v SY [2003] NSWCCA 291 R v Dib [2003] NSWCCA 117 CASES CITED : 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

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

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

IN THE COURT OF CRIMINAL APPEAL 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 involved in re-birthing Toyota Landcruisers in country New South Wales between roughly 2000 and 2003. They were charged jointly in relation to two of the vehicles. It is unnecessary to detail the facts as generally speaking the same scenario applied in each case. The stolen vehicle was given new identification numbers, usually registered in the name of a family member and then sold sometimes by an advertisement placed in a country newspaper. False papers were used to prove the authenticity of the vehicle for the purposes of registration or the sale of the vehicle. In all but two cases the vehicles recovered by the police were returned to the rightful owners or the person entitled to the vehicle and the purchasers were left out of pocket. In two cases the applicant Skillin made some effort to compensate the purchasers of vehicles from him. The applicant Sullivan received about $86,000 and Skillin about $87,000 from their involvement in these offences. 7 In the applicant Sullivan's case there was an offence committed in 2006 when he was on bail for the offences committed earlier. He was also subject to a good behaviour bond when he committed the first two offences for which he was sentenced. These were clearly aggravating factors and were in part why he received a heavier sentence than the applicant Skillin. 8 The matters have a long history. Both of the applicants were arrested in May 2004. The applicant Skillin admitted to police disposing of the vehicles but maintained he did not know they were stolen. The applicant Sullivan refused to be interviewed by police. They were committed for trial to the District Court on 7 April 2005. The matters were first before that court in September 2005. There were numerous adjournments while the Crown served material on the applicants and determined what charges would proceed and how the applicants would be indicted. In March 2007 a trial date of 16 July 2007 was fixed. Eventually there were successful negotiations between the applicants and the Crown resulting in the indictment of 19 July 2007 to which the applicants pleaded guilty on arraignment. 9 The subjective case of each of the applicants was summarised by the Judge in her sentencing remarks as follows:

Andrew Skillin is thirty-one years old. He has no prior convictions. Until he began offending in 2000, he was a person of good character. He has a partner and a baby. He told the Probation Officer he left school at fourteen. He said that learning difficulties affected his literacy and numeracy. He worked as a welder after leaving school.

For the past ten years he has been self employed cutting and selling wood. Previously he worked as a Kangaroo Shooter, but it was said his shooters licence was cancelled when he was charged with these offences.

His referees speak of him as a hardworking man. His parents told the Probation Officer he helped them with children they have fostered. Mr Skillin partially compensated two of the people who had bought rebirthed cars from him and lost them, being Brendan Pitman and Bradley Parker, with substitute vehicles of lesser value as I noted in the facts. Although as the Pitmans are unable to register the vehicle given to them because Mr Skillin will not assist with transfer documentation, the compensation to the Pitmans is of limited value and Mr Skillin's apparent remorse from those acts of compensation must be so qualified. Apart from one victim who obtained his vehicle back by court order, Mr Skillin's other victims remain uncompensated

Benjamin Sullivan is thirty years old. He completed year 10 at school then trained as a mechanic. He has worked at kangaroo shooting and wood cutting. Recently he has worked as a mechanic in the mining industry around Parkes and in Western Australia. His Parkes employer described him as keen and reliable. His referees speak of him as someone who helps others. Graham Lancaster of Parkes referred in his reference to Mr Sullivan helping volunteer fire fighters during recent bush fires around Parkes.

Mr Sullivan separated from his wife after he was charged, he said due to the stress of his being charged. He says they remain friendly. His parents are supportive of him. Mr Sullivan told the Probation Officer who prepared the Pre-Sentence Report that his motivation to commit the offences was to make money, though he denied having done so, contrary to the agreed facts.

John Jacmon, the psychologist, said Mr Sullivan is remorseful for his offences and for having caused financial losses to his victims. Mr Jacmon said that after Mr Sullivan was charged he attempted suicide, after which he attended three sessions with a psychologist in February and March 2006. It was after that that he committed the further offence in Count 9.

Mr Jacmon diagnosed Mr Sullivan as suffering from a major depressive disorder and generalised anxiety disorder. He said Mr Sullivan's background indicated depression and anxiety at the time of his offences, due to the rural economic downturn affecting his ability to make a living.

Mr Sullivan acknowledged through his counsel that a custodial sentence is appropriate for his offences. Because of his depression and past suicide attempt he will need attention in custody to prevent him from self harming again. Mr Jacmon said Mr Sullivan needs at least six months of cognitive behaviour therapy to treat his depression and teach him to avoid depression. Mr Jacmon expressed the opinion that if Mr Sullivan completes the treatment and retains family support the probability of his re-offending should be significantly reduced. 10 In sentencing the applicants the Judge quoted from the following passage of the judgment of McClellan CJ at CL in Mason v The Queen [2007] NSWCCA 32 at [19]:

…………………..His Honour sentenced the applicant having regard to his findings that the offences were committed as part of an organised re-birthing operation of stolen motor vehicles. Regrettably this type of illegal enterprise is not uncommon. It inflicts considerable loss on those members of the community whose vehicles are stolen, as well as inflicting loss on any insurer who may have obligations to provide compensation. Being part of a deliberate and organised criminal enterprise, in my view a fulltime custodial sentence was appropriate. Although the applicant was entitled to consideration for his plea of guilty, his prior good character and favourable references, these matters did not displace the need for a sentence which provided both adequate punishment and effective deterrence of others. 11 After referring to a number of decision of this Court stressing the seriousness of this type of conduct, the Judge went on:

The offence is prevalent. When Parliament increased the maximum penalty for these offences to 12 years imprisonment in 2001, Parliament was told that Australia was thought to have the second highest number of vehicle thefts per person in the world. In the previous year, 130,000 cars had been stolen in Australia. It was noted by Parliament that cars are often the second most expensive item a person buys in their lifetime. The rebirthing process makes detection more difficult. 12 As to the actual offences committed by the applicants the Judge stated:

It is clear from the agreed facts that the offences were part of a planned or organised criminal activity involving the purchase of vehicles of the same model, but older and of less value, to obtain replacement identifiers, the purchase of car parts. Such as engines used in the rebirthing process, the use of false documents to have vehicles registered, the use of family members to register vehicles so as to deflect suspicion from the main offenders, the renting of a workshop for the rebirthing process and the advertising of vehicles in rural newspapers to attract buyers. 13 The applicant Sullivan relies upon two grounds of appeal. The first is that her Honour gave insufficient weight to the utilitarian value of the applicant's pleas of guilty. The Judge gave him a discount of 15 percent. She acknowledged that the pleas involved "significant utilitarian value" but noted that the "late negotiation and entry of pleas meant that the Crown had to prepare for the trial or series of separate trials, therefore the utilitarian value of the pleas was diminished by their being made at that late stage". 14 In effect the submission is that, having regard to the complexities of the matters and the delay by the Crown in determining the precise charges to bring against the applicants in the District Court, the discount should have been "at least 20 per cent". The short answer is that this Court would not generally find that there was an error in the exercise of discretion in choosing a discount of 15 per cent rather than one of 20 per cent, in particular where the Judge gives reasons for determining the discount chosen. 15 The applicant seeks to obtain support from what I said in R v SY [2003] NSWCCA 291 in the following passage of my judgment and in particular the sentence I have underlined:

86. It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge . But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis. Nor is it the case that the same discount applies to all the offences for which the offender is to be sentenced and a proper exercise of discretion requires the judge to discriminate between the offences if it is necessary to do so in order to properly reflect the value of the pleas by the discount given.

After that passage I quoted from the judgment of Hodgson JA in R v Dib [2003] NSWCCA 117 in which his Honour noted that pleas coming late in the proceedings will have less utilitarian effect and, therefore, attract a lesser discount. 16 I do not understand how the underlined passage of my judgment applies to the facts in this case. Clearly the applicant could have indicated a willingness to plead guilty to some charges early in the proceedings. He did not have to wait until the Crown was in a position to go to trial in order to enter into negotiations. If he chooses to wait to see what the Crown is going to do at trial then clearly the utilitarian value of the pleas is less. He knew what offences he had committed even if the Crown was not in a position to prosecute him for those matters. If the accused waits as a matter of tactics before entering negotiations with the Crown then so be it, but he does not obtain the advantage of the full utilitarian value of an early plea. 17 At the hearing of the application, counsel for the applicant submitted that the Judge should have taken into account that whole history of the matter including the various charges that the Crown laid at different times during the period of the prosecution that did not find their way on to the final indictment. In my opinion none of this history changes the situation that the applicant knew what offences he had committed and what he was prepared to acknowledge whether the Crown had chosen to charge him with those offences or not. It is not unusual for persons to acknowledge to the authorities guilt of offences uncharged against them in an effort to clear the record and, as a result, be rewarded with what is known as an Ellis discount. A discount of 15 per cent was more than appropriate to meet the situation in this case. 18 The second ground relied upon by the applicant Sullivan is that the sentence is manifestly excessive. Complaint is made about the sentence imposed for count 1, the offence in respect of which the Form 1 matters were taken into account, as well as the overall sentence imposed. Her Honour structured the sentences by imposing fixed term sentences for each of counts 2, 9, 6, 7 and 8 with the sentences for the first two counts commencing on 22 October 2007 and those for the later three counts on 22 April 2008. Her Honour then imposed a sentence totalling 3 years for the offence in count 1 to commence from 22 October 2009 with a non-parole period of 1 year 3 months. 19 The submission is that the sentence for count 1 is itself manifestly excessive. I do not accept that submission. The maximum penalty for the offence was imprisonment for 12 years. There was a similar offence on the Form 1. The firearms offence also on the Form 1 was itself a serious one even if it could have been dealt with in the Local Court. The applicant possessed a firearm from which the identifying marks had been removed. Accepting that the offence for which he was sentenced was part of a business that the applicant was operating for a period of about 2 years in re-birthing and selling motor vehicles, it is impossible to my mind to view a sentence of 3 years as manifestly excessive. Clearly her Honour adopted the approach recognised in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 when sentencing for the other offences, that is by reducing the sentence that would otherwise be appropriate because of accumulating them to reach an appropriate total sentence. 20 It is submitted that the Judge failed to take into account the effect of delay upon the applicant in accordance with the principles in R v Todd (1982) 2 NSWLR 517 and approved in Mill v The Queen (1988) 166 CLR 59. The complaint is that her Honour failed to have regard to the evidence of the psychologist, Mr Jacmon, that "clearly supported a finding that the applicant's mental health problems were at least partly attributable to the delay in the proceedings". 21 The short answer to this complaint is that there is nothing in the psychological report that suggests that the applicant's mental health has deteriorated because of the delay in the prosecution of the offences. No such submission was made to the Judge. The psychologist states that the applicant was depressed and anxious at the time of offending and his mental health "took a downturn" after he was charged. Although there was a suicide attempt in 2006 there is nothing to suggest that this had anything to do with delay in the prosecution. It should of course be recalled that the applicant committed a further offence while on bail in 2006. It seems that from his release to bail in 2006 he was in constant employment and in 2007 was working in Western Australia. The references from his employers and others that knew him do not suggest that the applicant was suffering by reason of delay but to the contrary was showing himself to be an excellent employee. This is supported by inquiries made by the officer preparing the pre-sentence report. The treating psychologist in 2006, Ms Gibson, thought that his incarceration would have exacerbated the symptoms of his disorder and led to the suicide attempt. 22 This was not a case where the decision in Todd had any particular relevance. That decision is not authority for the proposition that delay will always result in mitigation of sentence: see R v V (1998) 99 A Crim R 297. It is clearly a matter to be taken into account that an offence was committed many years before sentencing and that over the period of time the offender and his or her circumstances may have changed. In some cases the delay will have worked to the offender's benefit and he or she obtains the advantage of that benefit in the determination of the sentence. But as I have already indicated, it apparently suited the applicant to allow the proceedings to go on as they did because he was not prepared to plead guilty until the Crown was in a position to go to trial. If he was left "in a state of uncertain suspense" by reason of the delay, see Todd at 519, it could only have been about how many charges the Crown was going to be able to prove. The delay could have been overcome at any time by the applicant admitting to some or all of the offences charged against him. In any event in the applicant's case any significance of the effect of delay rather lost its impact once he had reoffended in 2006. 23 Reference was made to the decision of this Court in R v Darwiche [1999] NSWCCA 293 and Mason v R [2007] NSWCCA 32 as indicating that the present sentences were in the overall excessive. In my opinion they provide no assistance to the applicant. They are merely exercises of discretion by other judges to specific factual situations much less serious than in the present case. 24 The only remarkable feature about the sentences imposed on the applicant by her Honour was that he received such a lenient sentence for the offence (count 9) committed in 2006 while on bail. With respect, I do not understand how her Honour thought that a fixed term of 2 years was appropriate for that offence or that it should to be served concurrently with the offence in count 2 that was committed in 2002. In my opinion the applicant was fortunate in the way her Honour dealt with this offence and the sentence could have been more severe and yet have been within her discretion. 25 There is in my view no merit in the complaints made by the applicant Sullivan and his appeal should be dismissed. 26 The applicant Skillin initially raised three grounds of appeal but Mr Maiden SC, who appeared at the hearing, no longer relied upon them. In particular there was no longer any suggestion that the Judge should have imposed a non-custodial sentence as had been argued in the written submissions. 27 The submission before this Court was in effect that the overall sentence imposed upon the applicant was manifestly excessive having regard to the applicant's subjective case, and in particular his attempts at compensating two of the victims and his rehabilitation over the period of delay before he pleaded guilty. Reliance was placed upon her Honour's finding that the applicant was unlikely to reoffend. 28 Much of the argument was directed to a comparison of the sentences imposed upon this applicant and the applicant Sullivan, although Mr Maiden eschewed any ground based upon disparity. The applicant of course had one less offence than his co-offender and there was not present the aggravating features that applied in the case of Sullivan. However Sullivan had the issue of his mental health to be taken into account as a matter of mitigation. The applicant's good character had little significance in light of the fact that he was being sentenced for multiple offences committed over a very significant period of time. The applicant received a lesser sentence than Sullivan and in my view could not have any sense of grievance from the sentencing outcomes, even though the applicant Sullivan could have received a harsher sentence than he did because of the offence committed on bail. 29 In my opinion, in light of the seriousness of the criminal conduct of the applicant in being engaged in, what was to all intent and purposes, a business of re-birthing motor vehicles for profit over a significant period of time, the sentences had to be sufficiently severe to reflect denunciation and general deterrence to a very significant degree. Those matters had to take priority in the determination of the sentence over any acknowledgment of the applicant's efforts at reform and his attempt, limited as it was, to compensating the victims of his crimes. Mr Maiden acknowledged that this was a balancing exercise. It was one to be carried out by the Judge and I am not satisfied that her Honour got the balance wrong. 30 In case the sentences imposed upon the applicant are used in the future for the purposes of assessing other sentences that have been or are to be imposed upon offenders for like crimes, I indicate my opinion that the sentence imposed upon Sullivan was probably inadequate and the sentence imposed upon Skillin was lenient. 31 I propose that in respect of both applicants leave to appeal be granted but the appeal be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.