Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Receiving stolen property - Whether sentence manifestly excessive - Turns on own facts

Giglia v The State of Western Australia [2010] WASCA 9

Poduti v The State of Western Australia [2011] WASCA 169

1 McLURE P: This is an application for leave to appeal against sentence. The appellant was charged with one count of aggravated burglary contrary to s 401(2) of the Criminal Code (WA) (the Code) and in the alternative, with one count of receiving stolen property contrary to s 414 of the Code.

2 On 20 February 2012 the appellant was convicted on his plea of guilty of one count of receiving stolen goods. He was sentenced by Stevenson DCJ to 3 years' imprisonment.

Any person who receives any property which has been obtained by means of any act constituting an indictable offence ... is guilty of a crime.

For the purpose of proving the receiving of anything, it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession, or has aided in concealing it or disposing of it.

4 The appellant relies on one ground of appeal. He contends that the sentence is manifestly excessive, not in type but in length. The maximum penalty for the offence committed by the appellant is 14 years' imprisonment.

5 The facts of the offending are as follows. Some time between 1.30 pm and 6.40 pm on 27 January 2011, unknown offenders broke into a residence in City Beach, the home of the complainants. Entry was gained by smashing a small glass panel near the lock on the front door and then reaching through the glass panel to unlock the door. A large quantity of property totalling approximately $40,588 was stolen by the unknown offenders from the complainants' home.

6 At about 7.15 pm on 27 January 2011, the appellant was driving a motor vehicle in North Beach. Due to the manner in which the vehicle was being driven, police followed it, activating their emergency lights and sirens. The vehicle being driven by the appellant did not pull over but continued at speed. A police pursuit followed, during which the appellant drove at speeds of up to 140 km per hour in a 70 km per hour zone, drove in and out of traffic, drove in an emergency stopping lane and, at times, ventured off the road surface. The police pursuit continued until the vehicle's engine caught fire and stopped. Five or six occupants, including the appellant, left the vehicle and ran across both the inbound and outbound lanes of the Mitchell Freeway and the train tracks in the middle of the Freeway. Police pursued on foot and a police dog was deployed. The appellant was apprehended hiding in a residential backyard some blocks from where the vehicle had been abandoned. Located in that vehicle were a significant number of items stolen during the burglary at the City Beach premises. A jammy bar and hammer were also found in the back seat of the vehicle.

7 The sentencing judge found that the stolen property was in the appellant's possession some 40 or 45 minutes after it had been stolen (ts 23). Some of the property stolen was not recovered, most notably a number of gold rings including wedding and engagement rings belonging to the complainants. The appellant participated in an interview with police but denied any knowledge of the vehicle or its contents.

8 The appellant was also charged with other offences arising out of these facts which were dealt with in the Magistrates Court on 22 May 2012. A sentence of 6 months' imprisonment was imposed for the offence of reckless driving which was ordered to be served concurrently with the 3-year sentence for receiving. Fines were imposed for the offences of failing to stop and driving without a driver's licence.

9 The appellant was also dealt with in the Magistrates Court on 22 May 2012 for other offences (aggravated burglary, stealing and stealing a motor vehicle) for which he received sentences of imprisonment which were also ordered to be served concurrently with the 3-year term for the receiving offence.

10 The first approach made on behalf of the appellant to the State with a view to negotiating a plea of guilty was in November 2011. The appellant was aged 28 when he offended on 27 January 2011. At the time of sentencing, he had a very lengthy record of prior offending. On 7 December 2006 he was sentenced to a total sentence of 4 years 8 months' imprisonment for three counts of aggravated burglary, one count of stealing a motor vehicle and driving it recklessly, one count of stealing a motor vehicle and one count of stealing. He had many other prior convictions for motor vehicle offences (failure to stop, no driver's licence, reckless driving) stealing, aggravated burglary, robbery, assault occasioning bodily harm, armed robbery and drug related offences.

11 The sentencing judge characterised the receiving offence as very serious for a number of reasons including the quantity and value of the stolen goods the subject of the receiving conviction, the failure to recover all the stolen property and the fact that the receiving offence took place shortly after the aggravated burglary in which the goods were stolen. He was not persuaded that the appellant had any genuine remorse or contrition for the receiving offence. Although the appellant pleaded guilty, it was not at an early stage.

12 The Court of Appeal is not entitled to intervene simply because it would have imposed a different sentence. It can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends upon the implication of error from the sentence itself. In determining whether a sentence is manifestly excessive regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for offences of that type, the seriousness of the circumstances of the offence and the offender's personal antecedents.

13 The purpose of referring to the standards of sentencing customarily imposed is to ensure that the sentence imposed on an offender is, having regard to all sentencing variables and in the knowledge that there is no single correct sentence, broadly consistent with sentences imposed in comparable cases. A single case or a small number of cases is of limited assistance in that exercise and cannot establish the range of sentences customarily imposed. Moreover, it is difficult to discern a range for the offence of receiving because totality considerations ordinarily intrude and the circumstances of the offending vary widely: Poduti v The State of Western Australia [2011] WASCA 169 [14].

14 In Poduti, the appellant claimed that a sentence of 2 years' imprisonment for receiving stolen property was manifestly excessive. The stolen property in that case was furniture, the retail value of which was $29,535 and its value at cost was around $13,129. The stolen furniture was located by police nearly a year after it was stolen. The appellant in Poduti was aged 42 at the time of sentencing, had pleaded guilty, also had a long record of prior convictions and committed the receiving offence whilst on parole. Following a review of sentences customarily imposed for a single offence of receiving, the court concluded that although the sentence of 2 years' imprisonment was towards the higher end of sentences customarily imposed, it was not manifestly excessive [15].

15 The sentencing judge regarded the appellant's offending as more serious than that in Poduti. The value of the property stolen was significantly higher; there was a close correlation in time between the burglary and the receiving offence; and not all the stolen property was recovered. It was clearly open to the sentencing judge to regard the circumstances of the appellant's offending as more serious. Moreover, the

appellant lacked genuine remorse and contrition and his plea of guilty was not made at the earliest reasonable opportunity. Having regard to the nature and length of the appellant's prior offending together with his lack of genuine remorse and contrition for the receiving offence, personal deterrence was a very weighty sentencing consideration. In all the circumstances, the appellant does not have reasonable prospects of succeeding in his claim that the sentence is manifestly excessive.

16 The lack of merit in the appellant's appeal is further underscored by the fact that he received a total effective sentence of 3 years' imprisonment for all of his offending on 27 January 2011. See Giglia v The State of Western Australia [2010] WASCA 9 [40].

17 I would refuse leave to appeal and dismiss the appeal.