Criminal law - Procedure - Receiving - Complaint not alleging an indictable offence but facts, if accepted, constituting indictable offence - Prosecution limited to allegations in complaint

1 SCOTT J: The respondent was charged on complaint that on 20 April 2003 at Bunbury he received a JVC digital video camera and three Sony Discmans valued at $1950, the property of Dorssett Retail Pty Ltd, which had lately been stolen, as he then well knew, contrary to s 414 of the Criminal Code.

2 The respondent pleaded guilty to that charge and was placed on a conditional release order for a period of 6 months.

3 The appellant sought leave to appeal against the order imposed originally upon the ground that the sentence imposed by the learned Magistrate in relation to the receiving charge was manifestly inadequate, particularly having regard to:

• the sentence imposed on an offender charged with the same offence resulting from the same burglary.

4 The ground of appeal was amended at the hearing of the application for leave to appeal. The existing ground was deleted and in its place the appellant sought to, and was allowed to, substitute the following ground: "the learned Magistrate acted in excess of his jurisdiction having regard to 426(1)(e) of the Criminal Code."

5 At the hearing of this appeal, as will become apparent in the course of these reasons, the appellant was given leave to amend the grounds of appeal by reinstating the original ground of appeal when it became apparent that the amended ground was doomed to failure.

6 In order to understand the way in which this matter unfolded in the Court of Petty Sessions it is necessary to trace the history of the complaint. The complaint first came on for hearing on 21 April 2003, the day after which the events the subject of the complaint were alleged to have occurred. The respondent was remanded on bail from time to time, and the matter was listed for trial on 31 July 2003. On that date the respondent, with the advice of counsel, pleaded guilty to the charge and acknowledged that he had previously elected summary jurisdiction on the matter.

7 The facts were outlined to the learned Magistrate by the prosecutor who indicated that the property the subject of the receiving charge had come from a business premises in Bunbury. $25,000 worth of electrical items had been stolen, including the items of property the subject of the receiving complaint. The facts revealed that the respondent admitted to having received the items, but denied any involvement in the burglary.

8 In relating the facts, the prosecutor made known to the learned Magistrate that a co-offender who had been charged with the same offence but involving a substantial amount of property had been sentenced to a term of 2 years' imprisonment.

9 Counsel for the respondent addressed his Worship in mitigation and made a powerful plea on his behalf. Amongst the matters referred to were the fact that the respondent had been involved in a very bad car accident and cracked his spine when he was aged 17. He had spent three months in hospital and six months at the Shenton Park Rehabilitation Centre. He had used drugs to control his pain.

10 In addition, the respondent had given evidence at a wilful murder trial involving his father. That evidence was said to be of particular significance in the trial.

11 As a result of giving evidence, the respondent was said to be at considerable risk if he was ordered to serve immediate imprisonment.

12 Whilst the respondent had a significant record of offending and breaching non-custodial orders, his Worship ultimately determined to give him the opportunity of serving out the conditional release order I have indicated.

13 It is then necessary to turn to and deal with the two grounds of appeal. The first ground of appeal in the order granting leave to appeal by Templeman J has been set out earlier in these reasons. That ground of appeal attacks the jurisdiction of the Court of Petty Sessions to deal with the matter. As I understand that ground of appeal, it arises out of the provisions of s 426(1)(e) of the Criminal Code. Section 426 provides:

"(1) Subsection (2) applies to the following indictable offences -

(a) an offence under section 378, 382, 383 or 388 in respect of which the greatest term of imprisonment to which an offender convicted of the offence is liable does not exceed 7 years;

(b) an offence under section 378 to which item (5)(a), (6), or (7) of that section applies;

[(c) deleted]

(d) attempting to commit, or inciting another person to commit any of the offences mentioned in paragraph (a) or (b);

(e) receiving anything that has been obtained by means of an indictable offence of such a nature, or committed under such circumstances, that the offender who committed the indictable offence might be summarily convicted under this Code.

(2) If a person is charged before a court of petty sessions with an offence to which this subsection applies and -

(a) the value of the property in question does not exceed $10 000; or

(b) whatever may be the value of the property in question, the court, having regard to the nature and particulars of the offence and to such particulars of the circumstances relating to the charge as the court may require from the prosecutor, considers that the charge can be adequately dealt with summarily,

the charge may be dealt with summarily at the election of the person charged, and, subject to subsection (4), the person is liable on summary conviction to imprisonment for 2 years or to a fine of $8 000."

14 This ground of appeal arises out of s 414 of the Code. That section provides:

414. Receiving stolen property, etc.

Any person who receives any property which has been obtained by means of any act constituting an indictable offence, or by means of any act done at a place not in Western Australia which if it had been done in Western Australia would have constituted an indictable offence, and which is an offence under the laws in force in the place where it was done, knowing the same to have been so obtained, is guilty of a crime.

The offender is liable to -

(a) the greatest punishment provided for the kind of offence by means of which the property was obtained; or

(b) imprisonment for 14 years,

whichever is the lesser.

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.

In this section 'property' as well as having the same meaning as that expression has in section 1 of this Code, includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which it has been converted or exchanged and anything acquired by the conversion or exchange whether immediately or otherwise."

15 It is to be noted that the complaint the subject of the receiving charge alleges that the property concerned had "lately been stolen". As is apparent from s 414 of the Criminal Code, the complaint could have specified any act which constituted an indictable offence in Western Australia as the source of the property received. Had the complaint in this case alleged that the property had been stolen as a result of a burglary involving property worth in excess of $10,000, then, in my opinion, the Court of Petty Sessions would have had no jurisdiction to deal with the matter. In my opinion, however, with the complaint formulated as it was, the Court of Petty Sessions had jurisdiction to deal with it on a summary basis at the election of the respondent. There was nothing in the complaint to alert the Magistrate to the possibility that the matter could not be dealt with summarily.

16 I would add that, had the complaint been formulated in such a way as to alert the Magistrate to the fact that it could not be dealt with summarily, the respondent would have been dealt with under the provisions in the Justices Act 1902 dealing with indictable matters.

17 The prosecution at no stage informed the Court of Petty Sessions that the matter was indictable, or that the respondent should be dealt with on the matter as an indictable charge. As a consequence, the matter proceeded in all respects as a summary matter.

18 The first ground of appeal arises because, when the facts of the matter were outlined to the learned Magistrate, the prosecutor said:

"The facts on the receiving matter are that during the early hours of Sunday, the 20th of April this year, offenders have broken into the business premises of Retravision located on Strickland Street, Bunbury. Approximately $25,000 worth of electrical items were stolen including numerous digital video cameras and Discmans. Later that afternoon at about 3.45 pm, the defendant was found in the council gardens on Wittenoom Street, Bunbury. Police spoke with him in relation to his knowledge of the burglary. He was searched and located within the bag he was carrying was a JVC digital video camera and three Sony Discmans. These were identified as having been stolen from Retravision earlier that morning. The property was totally valued at $1950. He was conveyed to Bunbury police station where he participated in a video record of interview. He stated that he received these items from another person in settlement of a debt which was owed to him. He admitted to having received the items during the early hours of the morning and stated he was not involved in the burglary."

19 In mitigation counsel for the respondent told his Worship that the respondent had come into possession of the property in circumstances where he did not know that the items had come from the burglary. It was said that the respondent took the goods because the person who gave them to him owed him some money and the goods were taken to satisfy the debt. The respondent intended to pawn the goods to obtain money.

20 Counsel for the respondent said that the respondent had attended the police station before the police located him, for the purpose of telling them about the burglary, and disclosing to the police the names of the people involved in that offence.

21 It is apparent from the facts of the matter, as outlined to the learned Magistrate, that it was only the facts that gave rise to concern as to the jurisdictional limit of the Court of Petty Sessions.

22 It was not until the matter was the subject of an application for leave to appeal, that the jurisdictional limitation of the Court of Petty Sessions was first raised.

23 In my view, the prosecution, having elected to formulate the complaint in the way in which this complaint was formulated, was confined to having the matter dealt with summarily in a Court of Petty Sessions if the respondent elected to have the matter dealt with in that way. In Wicks v Marsh; Ex parte Wicks [1993] 2 Qd R 583 at 587 the Court said:

"We have some difficulty in understanding how it works an injustice to charge an accused person with a lesser offence (attracting a lesser penalty) which can be proven in a summary way, simply because a more serious charge could also be made out for which the accused would be tried by a judge and jury."

24 See also McLennan v Campbell [2003] WASCA 145 per Pullin J at [24].

25 The prosecution having elected to charge the respondent with an offence less serious than the facts warranted, it cannot then rely on facts which would have rendered the respondent liable to a more serious penalty: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 per Gibbs CJ, at 392, and Brennan J, at 405 - 406.

26 In my opinion, had the prosecution sought to allege an indictable offence in the complaint, then it was obliged to particularise in the complaint those matters giving rise to the jurisdictional limitation of the Court of Petty Sessions. As is apparent from s 414 of the Criminal Code, set out earlier in these reasons, one of the elements of the offence of receiving is that the property must have been obtained "by means of an act constituting an indictable offence". Any indictable offence by which property had been unlawfully obtained could have been particularised. For example, it could have been alleged that the property had been obtained through an armed robbery, a burglary, a false pretences or other fraud offence, or in some other way that made the charge an indictable matter. Had the complaint also alleged that the property received was part of the proceeds of such an offence where the total value of the property in question exceeded $10,000, then it would have been apparent to the learned Magistrate that the matter could not be dealt with summarily: see s 426 of the Criminal Code, set out earlier in these reasons.

27 In my view, it was open to the prosecuting authorities to have preferred a complaint within the jurisdiction of the Court of Petty Sessions even where the facts revealed that the matter was beyond the jurisdictional limit of that Court. In such circumstances the Petty Sessional Court can only deal with the matter on the basis of the complaint filed in the Court: Tommekand v The Queen [1996] 1 Qd R 564.

28 For these reasons, in my opinion, whilst the complaint remained unamended, it fell within the jurisdiction of the Court of Petty Sessions. No application was made to amend the complaint either in the Court of Petty Sessions or on appeal.

29 In all of the circumstances, therefore, in my opinion, the first ground of appeal must be dismissed.

30 The second ground of appeal relates to the sentence imposed by the learned Magistrate. As I have said, the respondent was placed on a conditional release order for a period of 6 months. An associated offender, one Sudlow, was alleged to have received approximately $10,000 worth of property from the same burglary offence. As I have said, Sudlow was sentenced to a term of 2 years' imprisonment by the same Magistrate. I am advised by counsel that Sudlow's sentence is to be appealed so it is not appropriate to comment on his sentence further.

31 In my opinion, the complaint against the present respondent alleged a very serious matter. It alleged that the respondent received property valued at just under $2000 which he knew was stolen. He intended to pawn those items to obtain money.

32 There were many factors in the respondent's favour. When he was 17, he had been involved in a very serious car accident and cracked his spine, necessitating a period of some nine months in hospital. He had significant and painful injuries. In due course he will require a hip replacement. In addition, the respondent had been a pivotal witness for the Crown in relation to a wilful murder charge preferred against his father. As a consequence, he was a person not only at risk, but at considerable risk, within the prison system had he been sentenced to an immediate term of imprisonment. As the sentencing remarks reveal, his Worship was conscious of many factors in favour of the respondent.

33 However, in my view, it is clear that the sentence imposed was undoubtedly extremely lenient, to the extent that, in my opinion, it was outside the appropriate sentencing range. In my opinion, the respondent should have been sentenced to a more substantial penalty than that imposed. Without descending into detail, the respondent had a significant criminal record and, in particular, had been sentenced to 12 months' imprisonment, suspended for 12 months, on 29 May 2002. The conduct alleged in this complaint occurred during that suspended term of imprisonment.

34 Taking all matters into account, I have come to the view that this ground of appeal should be allowed and that the respondent should be resentenced. In my view, bearing in mind all of the circumstances of the case, including the period during which the respondent has been subject to the conditional release order, the respondent should be sentenced to a term of 16 months' imprisonment which should be suspended for a further term of 2 years. That sentence is not intended to trigger the existing suspended term of imprisonment, but rather to reflect the seriousness of the respondent's conduct. In addition, it will provide the respondent with some motivation towards his own rehabilitation and provide a significant sanction for him to comply with the obligations that the learned Magistrate spelt out very clearly for him in the Court of Petty Sessions. Those obligations relate to his earlier sentences and his drug rehabilitation programme. The respondent's fate will be in his own hands. Should he continue to offend, it is likely that the suspended terms of imprisonment will be activated. Should that happen, he will have no-one but himself to blame for the consequences.

35 For these reasons I would allow the appeal on ground 2, set aside the penalty imposed by the learned Magistrate and substitute a term of 16 months' imprisonment suspended for a period of 2 years from the date of this order.