KUTCHERA v REGINA [2007] NSWCCA 121 | Case summary

5 I will deal with the matters in order but before doing so, I need to briefly state the facts giving rise to the offence and make some comments on the remarks of Marien DCJ. 6 The essential facts were that the applicant together with others presented a stolen Commonwealth Bank cheque, which cheque was known to be stolen by the applicant, in order to obtain a motor vehicle being a $415,000 Lamborghini Gallardo. 7 There are a number of other aspects to the factual circumstance including unrelated issues associated with defrauding the revenue but it is not alleged that the applicant had any connection with that scheme. 8 One of the applicant's co-conspirators was granted immunity in relation to this particular offence for the giving of evidence against the applicant and in the prosecution of other persons in the wider scheme to defraud the Office of State Revenue. 9 The intention of the applicant was to obtain the motor vehicle and sell it for an amount, presumably significantly discounted, and the money would then be shared between him and his co-offender. 10 To say that the plan was flawed is probably an understatement given that the registration of the car which they had purchased was not in the name of either the applicant or his co-offender and it would have been difficult if not impossible to transfer registration. Given that the car continued to be registered (which was part of the conspiracy to defraud the Office of State Revenue) in the name of the motor dealer, even an attempt to impersonate and/or forge the identity and signature of the owner would have been extremely difficult. But the impossibility of realising the profit is not an answer to the charge under section 178BA. Nor did the applicant attempt to defend the charge. As already stated, the applicant pleaded guilty and was given a significant discount for the utilitarian value of that plea of guilty. That discount was at the lower end of the range (ROS 17) because of the timing at which the guilty plea was made. 11 The sentencing judge took account of his plea of guilty and what his Honour described as genuine expressions of remorse and contrition. 12 His Honour came to the view, with some hesitation, that the applicant was unlikely to re-offend but, the hesitation was caused by the lack of rationality of a first time offender at the age of the applicant committing an offence of this kind. It was described by his Honour as "an ill conceived and naïve criminal enterprise" which was an expression (ROS 16) taken from the submissions of counsel representing the applicant except that counsel utilised the term "escapade" rather than "enterprise" (ROS 13). 13 The applicant is a US citizen having been born in New York and arrived in Australia in 1999. He was married to an Australian and divorced in 2004. There was, at the time of sentencing before his Honour a hope for reconciliation. The most likely explanation for an offence of this kind by a person who has no prior criminal record in New South Wales and, it seems, nowhere else, and is otherwise a man of good character, seems to have been the applicant's view that his life had "fallen apart". 14 Because the applicant is unrepresented on appeal I have examined more carefully than might otherwise be the case the proceedings below and the remarks on sentence to ascertain whether there is in any way a suggestion of error. 15 Judge Marien SC, who is an extremely experienced sentencing judge, has, on the face of his remarks, committed no error of principle in the sentencing process and, with one possible exception to which I will return, has given the applicant the benefit of all of the criteria he could in exercising his discretion. 16 Sentencing is an exercise of discretion. The normal restrictions on an appellate court to ground a review of the exercise of the discretion apply and the text book example is one relating to sentencing: House v The King (1936) 55 CLR 499. Those restrictions require that an appellate court cannot merely substitute its opinion as to the appropriate sentence for that of the sentencing judge. There must be an error disclosed, whether identifiable or manifest. The error to be identifiable requires the application of a wrong principle or the misapplication of principle, an error of law or fact, the consideration of an irrelevant criterion, or the failure to consider a relevant one. None of those errors are disclosed in the sentence imposed on the applicant. Nor is the sentence imposed outside of the range available to his Honour and it does not disclose manifest error. 17 The sentencing judge correctly refused to take into account the use of a false instrument: De Simoni (1981) 147 CLR 383 at 389. 18 However, his Honour did take into account the lack of planning or sophistication in the offence, the fact that there was, ultimately, no damage suffered and the vehicle was recovered. 19 The sentence is at the very low end of the range of sentences of imprisonment that could have been imposed. 20 The applicant essentially relies upon the failure by the sentencing judge to obtain a pre-sentence report. Pre-sentence reports are an important tool in the process of sentencing. In the present proceedings his Honour (transcript 6 December 2006, page 2) discussed with counsel for the applicant the need for a pre-sentence report and in the process of that discussion the following exchange occurred (transcript 6 December 2006, page 2-3): "His Honour: You're requesting a presentence report? [Counsel for the applicant]: I'm not requesting one but it's a matter, as I said, for the court whether the court wants one as well but we'll - their own report I should say but we'll be I should say obtaining a background report. His Honour: Are you able to say what your ultimate submission is going to be as to what the penalty should be? [Counsel for the applicant]: I will be submitting that a full time custody would be appropriate but that it be suspended. Alternatively, perhaps your Honour might hear me on community service but given the amount of money involved. His Honour: Then I would need a presentence report wouldn't I? [Counsel for the applicant]: I think that's right your Honour even for a suspended sentence. His Honour: I don't know if it's outside the realms of possibility but -- [Counsel for the applicant]: I think it's -- [Crown]: Such a penalty as one my friend has intimated he would seek is within your Honour's range and if that's a matter which -- His Honour: What a community service order or suspended sentence? [Crown]: No, suspended sentence. His Honour: Yes. I obviously don't need a presentence report for a suspended sentence but there was an indication of possibility of a submission for community service. [Crown]: Your Honour would need a report for that. [Counsel for the applicant]: I think that would be - I'd have to concede your Honour that would be fairly optimistic from the defence point of view but I think suspended sentence is certainly where we're aiming at. His Honour: It's a matter for you. Are you asking for a pre-sentence report or not? [Counsel for the applicant]: No, I'm not. His Honour: You're not, all right. I will obviously not be part heard in the matter, I've just taken the plea. So when do you want to go over to? … [Counsel for the applicant]: I just spoke to my client and on the basis that I won't be directing my submissions towards a community service order, we could proceed to sentence now. I can get the evidence that I would be going to get from a background report, I can get that from him in the witness box. It's a matter for your Honour but I'd probably prefer an adjournment before I do that even if it just for half an hour but we can proceed to sentence - on that basis we can proceed to sentence today and the only reason I say that your Honour is because I haven't taken any proof of evidence from him but I can - I mean it's quite simple. I just wanted to give your Honour a bit of his background and that will only take ten or 15 minutes." 21 It is obvious from the above exchange that his Honour was prepared to order a pre-sentence report (and grant an adjournment for that and other purposes) but that report was waived and the right to the adjournment waived by counsel on behalf of the applicant. In those circumstances it is inappropriate for the applicant to complain about the failure of his Honour to obtain a pre-sentence report. 22 A pre-sentence report must (see section 86 and section 80 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) be obtained before a sentence of community service or home detention is imposed but otherwise it is a matter of discretion and practice bearing in mind the attitude of the parties. 23 It is usual for an adjournment to be made and an order issued for the preparation of a pre-sentence report because it is, as previously stated, a useful tool in the sentencing process, but it is always a discretion to be exercised judicially by the sentencing judge. In circumstances, such as here, where the applicant has, through his counsel, specifically requested that a pre-sentence report not be obtained because they oppose an adjournment, it was not an error for the sentencing judge to proceed. There was no possibility, given the nature of the offence in question, that the applicant would be ordered to serve his sentence by way of home detention. 24 The other grounds raised in the notice of appeal are wholly without merit. 25 The difficulty involved in sentencing has been the subject of much comment and the result of the exercise of a sentencing discretion will differ, within an applicable range, and still be correct. It is, as earlier stated, an exercise of discretion and while ever it is consonant with consistency of approach and accords with the statutory regime, as much flexibility as possible must be allowed: Johnson v The Queen (2004) 78 ALJR 616 at 618[5]; Markarian v The Queen (2005) 79 ALJR 1048 at [27]. 26 It is this exercise of discretion which allows for the capacity of the court to tailor a sentence to the individual that is before it and the offence that has been committed. An experienced sentencing judge, such as Marien DCJ, balances overlapping and sometimes contradictory goals including deterrence, retribution and rehabilitation. 27 In the current proceedings the applicant relied upon the alleged "significant delay" between the charge and sentence. While there was initially some contest concerning the level of delay, it is accepted that there was a delay of 20 months between the date of the arrest and charging and the sentence before Marien DCJ. Such a delay is not, of itself, so extraordinary as to warrant appellate intervention. While any delay is regrettable, in this case the delay worked to the advantage of the applicant because he was able to show a return to what was his otherwise good behaviour. This Court commented on the question of delay and its effect in R v Todd [1982] 2 NSWLR 517. At 519, Street CJ said: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 28 The above comments and approach have been endorsed by the High Court of Australia in R v Mill (1988) 166 CLR 59. 29 Nevertheless, as earlier stated, the amount of delay (20 months) is not such that it would ordinarily warrant consideration beyond that which Marien DCJ has given it. The sentencing judge took into account his good behaviour and the fact that the behaviour was out of character. The sentence was a less severe sentence than may have otherwise been imposed. The earlier remarks relating to sentencing being a balancing exercise must be reiterated. When dealing with deterrence, one must remember that it is not only aimed at the individual (specific deterrence) but general deterrence for the community at large. 30 During the course of the remarks on sentence Marien DCJ did not specifically mention the period between charge and sentence. During that period, the applicant was subject to conditional liberty. The conditions of reporting, when they existed, were not particularly onerous. 31 The applicant was admitted to bail by the Police when arrested on 14 April 2005. The conditions of that bail required daily reporting between 8am and 8pm, the surrender of his passport and therefore a restriction on his return home. On 13 May 2005 the reporting conditions were reduced to twice weekly and on 20 October 2005, the reporting condition was reduced further to a requirement to report only once per week (each Tuesday). While there may have been one technical breach of the bail condition which warranted no further action, those conditions remained in force until 29 March 2006. On that date, reporting conditions were deleted. He then remained on conditional liberty, without the need to report, until the date of his sentence, 6 December 2006. 32 During the course of the oral argument before the Court the applicant relied upon an alleged agreement with the Crown as to the severity of the sentence to be imposed. That agreement has not been properly proven, or proven at all. It cannot be taken into account in these proceedings and could not have been taken into account by the sentencing judge. 33 Assuming, without deciding, that the belief in such an agreement infected the plea, it is a matter that can affect only the plea and that is not an issue in these proceedings. While sentencing after a plea of guilty may sometimes involve a degree of informality, the system of justice operating in this State requires that it is the prosecutor, and the prosecutor alone, who decides the charge to be preferred against any accused. Further, it is the accused, only, who decides whether to plead to any charge. Further, it is the sentencing judge, and only the sentencing judge, that decides the sentence to be imposed: GAS v The Queen (2004) 217 CLR 198. It is both inappropriate and improper for the Crown and the accused to purport to reach agreement as to the appropriate sentence to be imposed. I am not suggesting that such an agreement was reached in this case. Further, I do not suggest that the Crown were even aware of such a suggestion until this appeal. Further still, there is no suggestion that the sentencing judge was aware of any such agreement or any understanding as to the nature of the sentence to be imposed. 34 Lastly, the request for this Court to order a pre-sentence report is misconceived. The use of such a report would arise only if and when the Court would otherwise move to re-sentence. Since, I am not persuaded that intervention is appropriate, a pre-sentence report is not now useful. 35 The terms of the document sought to be relied upon recite that "the Crown will not be asking for a penalty of more severity than an 11 month suspended gaol term" on the plea. In fact, the Crown did not submit to the contrary to his Honour. 36 As earlier expressed, the subjective circumstances of this applicant are to his credit. He spent 20 months under conditional liberty and, but for this offence, the whole of his life without ever being involved in criminal activity or otherwise coming to the attention of the police. While the offence was serious, and the value of the motor vehicle significant, it was, ultimately, the non-violent stealing of a motor vehicle in circumstances where the motor vehicle was returned to its owners in the same condition. He has the support of family, employment and an otherwise exemplary life. His Honour described him as having "an exemplary character in the past". 37 The seriousness of the offence required a custodial sentence. But a custodial sentence does not necessarily mean a full-time custodial sentence and does not eliminate the possibility of a suspended sentence. A suspended sentence is not an alternative to the imposition of a custodial sentence: R v Zamagias [2002] NSWCCA 17 (per Howie J, with whom Hodgson JA and Levine J agreed). A sentence cannot be suspended until it has been imposed. A suspended sentence is the suspension of the execution of the sentence and is not, therefore, classified as a non-custodial term. The suspension of the sentence also means that the offender continues on conditional liberty and any breach of the law will result in the imposition of the sentence originally imposed and the suspension ceasing. 38 The sentencing judge considered these aspects. As one would expect, his Honour referred to the judgment of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321. In dealing with the matters to be taken into account in determining whether a sentence should be suspended, Kirby J said: "The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do'." ( Dinsdale , per Kirby J at [79]) 39 In Dinsdale¸ Kirby J classified the approach of the Western Australian Court of Criminal Appeal as too narrow in the reasons for suspending a sentence for imprisonment. His Honour referred to the fact that the Court of Criminal Appeal had addressed their attention, mainly and specially, to the question of the appellant's rehabilitation. His Honour said: "In this, with respect, the focus which he adopted was too narrow. The primary judge, on the other hand, had looked at the matter more broadly. He was obviously influenced in his decision about suspension by the prospects of rehabilitation on the part of the appellant, which he regarded as promising. But he also appears to have been influenced by all the circumstances and information available, including the nature of the particular offence, the low likelihood of the appellant's re-offending, and the impact which a prison sentence, immediately served, would have on the appellant and his family. The primary judge also mentioned the 'social stigma' which necessarily followed the conviction, quite apart from a prison term. In my view, all of these were considerations available and proper to the decision of whether or not to suspend the term of imprisonment." ( Dinsdale , per Kirby J at [88]) 40 The sentence imposed by his Honour was within range. Indeed, but for the unique subjective factors that tell against condign punishment and specific deterrence, the sentence would be light. However, in these peculiar circumstances, as the Crown's submissions below makes clear, a suspended sentence was also within range. Below, the following exchange occurred: "His Honour: Yes, Mr Crown. It's been conceded that a custodial sentence is appropriate but [counsel for the applicant] submits that it could be suspended. [Crown]: My submission would be that that is not outside the range although the range is something very difficult to ascertain with these types of offences …" [The Crown continued with an analysis of the subjective and objective elements for and against the applicant and had previously referred to the suspended sentence being within range (Transcript p. 2).]

KUTCHERA v REGINA

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