Karpin DCJ's sentence
12 In relation to the sentences imposed by Karpin DCJ, the objective facts included the following. The applicant had his own business as a panel beater. On 4 April 1999, the police attended premises at Lidcombe leased by him. They found a large number of vehicles, few of which appeared to be totally intact, and a substantial quantity of parts and components. The offences to which the applicant pleaded guilty before her Honour related to vehicles found on the premises all of which had been stolen. They included a BMW and a Toyota four-wheel drive. Of the five vehicles mentioned in the three charges and in Form 1, all but one had their registration plates removed. The engine and chassis of the Toyota had been completely removed and replaced with the engine and chassis of another vehicle. Another of the five vehicles, a Subaru Impreza, had been substantially stripped; the engine was missing.
13 The vehicles which were the subject of the three charges before her Honour had been stolen on various dates between 28 March and 5 September 1998. Precisely when they had come into the applicant's possession - that is, the dates of receiving - was not apparent. Some of them had obviously been worked on over a period of time. It was obvious that the enterprise being carried on by the applicant was what is popularly known as "rebirthing" stolen motor vehicles.
14 The break-enter offence, committed on 29 March 1999, involved an attempt to acquire another Subaru vehicle. The vehicle had been removed by the applicant and others from a garage on private property and was being worked on to neutralise the alarm system when the offenders were disturbed. In the context of what was found on the applicant's premises about a week later, on 4 April 1999, this was obviously an attempt to acquire another vehicle for the rebirthing operation.
15 Karpin DCJ made the following finding: "The facts of this matter disclose a process of rebirthing cars..." That finding was justified. Indeed, it was unavoidable. The applicant says that the finding was influenced by an erroneous finding by Shillington DCJ in that regard. However that may be, Karpin DCJ's finding, if relevant, was compelled by the evidence before her irrespective of what was before Shillington DCJ and irrespective of his finding on the evidence before him.
16 Karpin DCJ is criticised for the way she used this finding. She went on to say: "The rebirthing of cars is endemic in the community." She then made observations about the financial consequences of such crimes for the owners of stolen cars, for the unwitting purchasers of "rebirthed" vehicles and for the community, through insurance premiums.
17 A sentencing judge is entitled to take notice of the incidence of particular kinds of crime and to bring that information to bear in the sentencing process as relevant to the need for general deterrence - that is, in order to deter others from committing the particular type of crime in so far as sentencing practice is capable of achieving that objective: Brenton (NSWCCA, 14 November 1994, unreported); A [1999] NSWCCA 61 at [21] and [26].
18 In this instance, the fact that the vehicles involved were either received or stolen for the purpose of such a rebirthing operation was a relevant consideration. It categorised the applicant's conduct as being of a kind which, on an approach open to a sentencing judge, required that due weight be given to general deterrence in the sentencing process because of the prevalence and social implications of crimes of that kind.
19 The evidence itself was sufficient to put the applicant's legal representatives on notice that it was likely to be used in this way. The applicant had the opportunity, through his legal representatives, to say whatever could be said about that.
20 Then it is submitted that Karpin DCJ failed to take relevant subjective matters into account. In careful, sensitive and insightful remarks, her Honour referred to all the matters mentioned in argument here. There is no substance in the submission that, having referred to them, she failed to take them into account.
21 Lastly, it is submitted that Karpin DCJ failed to take special circumstances into account. The non-parole period set by her Honour in relation to count 1, which is the effective sentence for the totality of criminal conduct involved in all the offences, is less than three quarters of the sentence. Three quarters of the sentence is the minimum non-parole period allowed by the legislation absent special circumstances. Under the formula, that would be a non-parole period of not less than three years in this case. Her Honour set a non-parole period of two years and six months which is less than the provisional minimum under the legislation.
22 Her Honour did not say whether she found special circumstances. However, there are only two possibilities. Either the judge considered the question of special circumstances, found them, and reduced the non-parole period accordingly, omitting to record what she had done in that regard; or she made an arithmetical error in calculating a non-parole period in accordance with the provisional formula in the legislation. A non-parole period of two years six months cannot be an arithmetical error for three quarters of four. That leaves only the first alternative as the explanation of what was done.
23 Ordinarily, a failure to mention special circumstances may imply a failure to consider them, but that cannot be so in this case. For the reasons I have given, one has to conclude that Her Honour considered whether there were special circumstances, decided that there were and reduced the non-parole period on that account relative to the provisional statutory formula.
24 The non-parole period of two years and six months left one and a half years potentially available for supervision on parole. Her Honour was not bound to allow longer than that on the facts of this case. I would not do so myself if it were necessary to resentence the applicant.
25 Lastly, it is submitted that the principle of totality was not observed by Karpin DCJ and that if the applicant had been sentenced for all the offences at one and the same time, the effective sentence would have been less.
26 There is no substance in this submission. Karpin DCJ recorded that the Crown conceded that all the offences, including that for which the applicant was sentenced by Shillington DCJ, should be treated as part of the same course of offending and that the principle of totality therefore applied. There is no reason to suppose she did not apply that principle or that she did not apply it correctly. The effective sentence she imposed is entirely consistent with the total objective criminality involved and the subjective factors disclosed by the evidence.