R v Newham [2000] VSCA 138

Court of Appeal (Vic)|2000-07-25|Before: ORMISTON, BUCHANAN and CHERNOV, JJ.A.

CRIMINAL LAW - Sentencing - Handling - Single count covering

2½ years - Large number of items (set out in 82-page schedule) found on appellant's premises, worth $160,000 - Goods bought, and sold or sold on commission at hotels and building sites over long period - Appellant co-operative but no "useful" information given to police - Dispute as to facts not raised in grounds - Weight to be given to guilty plea, rehabilitation, lack of prior convictions and co-operation - None made out - Sentence of 5 years (minimum 3½ years) not manifestly excessive.

The appellant has been granted leave to appeal against a sentence imposed on him on 3 December last year in the County Court. He is now aged 41 years but at the time of the offending, between June 1994 and February 1997, he was aged between 35 and 38 years. On 8 December 1997 he was committed for trial in the County Court on a single charge of handling stolen goods contrary to s.88(1) of the Crimes Act 1958 and he reserved his plea. I should mention that the form of the count which now comes before the Court is a single count expressed in terms that the appellant, between 9 June 1994 and 23 February 1997, dishonestly received certain stolen goods, and then is set out over the succeeding ten lines a description of a large number of items, such as kitchenware, sound equipment, electrical equipment, photographic equipment, compact discs, tools, model motor cars, answering machines and things of that kind.

During the course of argument I suggested to counsel that this seemed to be a representative or sample count. It is of no particular concern and is not a matter about which counsel sought to persuade the Court that one view or the other was significant for the purpose of this appeal. But in a sense, since it is a single count covering an extended period, it is not strictly either a representative or a sample count but is a count which purports to cover the whole of the activity of the appellant as a handler of goods, as the count says, "knowing or believing the same to be stolen goods", for the period in question and it is intended to cover all the goods with which he dealt during that time. If it were, of course, a matter which had gone to trial, then, although I express no final view on it, it was a count to which the appellant might have taken objection on the ground of duplicity; but, since it was a plea, one must take the view that all the matters were comprehended by it and the count bears a closer resemblance to the unreported cases of either Wright in 1974 (Court of Criminal Appeal, 13 May 1974) or Carver in 1996 (Court of Appeal, 3 June 1996), in which a large number of counts were comprehended within either several counts or a single count for the purpose of a plea. As I say, in the end I do not believe it is of any consequence since the appellant has pleaded guilty to the count, although, as I will note later, there was some dispute as to precisely what it was which he was admitting.

On 29 November last year the appellant pleaded guilty before a judge in the County Court to that single count of handling stolen goods. The maximum penalty applicable to that offence at that time was 10 years' imprisonment. The appellant admitted what was at first stated to be a prior conviction for burglary recorded on 21 November 1994, although, as it appeared in the course of argument, it cannot strictly be described as a prior conviction as it was recorded after the commencing date of the count, that is, some five months after the commencement of the handling business on 9 June of that year. There was no dispute, of course, that it might be taken into account as relevant to the question of the offender's criminality, although it was but a single offence and therefore it was not suggested that it should be given particularly great weight.

On 3 December 1999 the appellant was sentenced to be imprisoned for five years and the learned judge fixed a non-parole period of three-and-a-half years, declaring five days' custody to be the period which had been served. In addition, the judge ordered, pursuant to s.5(1)(a) of the Crimes (Confiscation of Profits) Act 1986, the forfeiture to the State of over 2,000 individual items of stolen property which were listed in an 82-page schedule to the confiscation order. That schedule, however, was not a schedule to the count as such and, of course, referred only to those goods which had been taken at the time that the appellant's premises had been raided and shortly before he was arrested.

As a result of anonymous information, on 23 February 1997 police officers executed a search warrant on the appellant's premises in Reservoir. The appellant when he returned home assisted the police with their enquiries and the search commenced at 6.45 p.m. and continued to 1.10 on the following morning, when the appellant was taken to the Preston police station. The appellant's home consisted of a house, garage and bungalow. An extensive alarm system had been installed, apparently only during the year 1997, protecting the premises and in particular the garage. Some twelve police officers were involved in the search and as a result property alleged to be stolen was removed by the use of one two-and-a-half-tonne furniture van, two police vans, a station wagon and a sedan. A certain amount of the property was later conceded to have been legitimately owned by the appellant or his family, but in my opinion those concessions related to only a very small proportion of the total property taken away on that day. The schedule of the property found at the appellant's premises on that day and which was attached to the confiscation order consisted, as I said, of some 82 pages. The items included two video cameras, a mountain bicycle, 13 video recorders, six Walkman cassette radios, 24 audio components or systems, 20 household appliances such as coffee-makers or telephones, nine televisions, 103 handyman items such as power tools and gardening appliances, two computer systems, six car radios, 514 video cassettes and 1,650 or more audio compact discs, as well as various household and personal items such as bed linen. Not all the compact discs were said to have been handled by the appellant, but at the end, after some negotiation, a very large number appeared in the schedule attached to the confiscation order. The value of the stolen property seized was estimated at approximately $160,000. A number of items were still in shipping boxes. The appellant's premises were said to bear the hallmarks of a well-organised business dealing in, and in the sale on commission of, stolen goods.

The appellant was interviewed just after midnight on 24 February 1997. He conceded that the police had identified and seized a large amount of stolen property. He said he had been dealing in stolen goods "off and on for a couple of years" and later accepted that he had been self-employed, as it were, as a handler of stolen goods for at least two-and-a-half years. His purpose was to make a small amount of money, as he described it, although one must have some doubt as to how little he made. When the interview resumed just before midday the following day, the appellant stated that he was on a carer's pension, looking after his aged mother. For the three weeks before his arrest he had been receiving deliveries of stolen goods almost every day. Nine times out of ten the property had been stolen from retail outlets and still carried original price tags. Some property would be kept by him and other property had been sold. He dealt both on a consignment basis, when he would take up to 20% of the sale price, and by outright purchase of the goods. He would generally find his buyers in hotels or on building sites. Twelve months prior to his arrest he had access to a more systematic outlet for the stolen goods, but he declined to identify that outlet. He had a number of regular suppliers but again he would not identify them. An expensive alarm system had been installed in his home. He was worried that the people he dealt with created a threat to his family. On two occasions his suppliers had broken into the premises and stolen back the stolen property they had previously sold to him. In the end, he gave as his reason for offending that, "I was a fool", and "To try and make money", but he conceded that he had turned over a reasonable amount of money during the period he had been carrying on his handling operations. At the time of that interview the appellant did not suggest that he was participating in the criminal enterprise as a result of duress from any party.

One should mention also that the appellant's only "prior" conviction, as I have previously mentioned, was for burglary committed in 1994, for which he was convicted and placed on a community-based order for a period of nine months.

How he started his "career" as a handler seems related to his need to stop work as a retail sales assistant and part-time disc-jockey so as to look after his elderly and sick mother. At the time, in about mid-1994 somebody approached him to participate in dealing in stolen goods and his activity increased after that year, subject to what he claims was a break of nine months while he was on the community-based order. During this period - that is, the whole period up to the time of his arrest, and no doubt later - he was in receipt of a carer's pension, but after his mother's death in June 1998 he had been receiving a disability pension because he suffers from severe asthma and also, more recently, from diabetes. How far these were disabling over the relevant two years or so is not clear, for it seems that one of the most common methods he used to dispose of the goods was to go out to different hotels and building sites to find potential customers for the large number of items he dealt with over that time.

For the purpose of the plea, his counsel tendered a large number of favourable references (some, I think, preceding either the offending or knowledge by the person giving the reference of the fact that he had offended) and a report from Mr Healey which stated that he was of slightly above average intelligence but that he felt under threat and that he ought not to be given a custodial sentence, largely because of his health problems. In addition a close friend, Mr Neil, and the appellant's wife were called to give evidence, the latter seeming to be oblivious of what had been going on around her in the family home.

Before turning to the grounds of appeal I should mention an argument raised by counsel which seemed to go outside those grounds, although it was relied on to support several of the specific grounds. In essence, counsel said that the judge's findings as to the extent of the systematic methods used by the appellant could not be supported because a large number of the items in the schedule had turned out to be the property of the appellant and his wife. When pressed as to precisely what the Court should conclude as to the volume and type of items handled, counsel seemed unwilling to give any specific answer, saying merely that it was much less than otherwise appeared and that his client was only a handler in a small way. Even if these matters had been the subject of one or more specific grounds, I would not accept that analysis of the facts and the proceedings. The schedule, including some 1,600 or more compact discs, as I have said was not annexed to the presentment, but was handed to the judge during the hearing, without complaint. Moreover, the specific list was made a schedule, in the presence of the accused and his counsel, to the forfeiture order which was not the subject of any dispute. There had been discussion between the prosecution and the appellant before the plea as to which items were the personal property of the appellant and it had been agreed to delete some items from both the presentment and the schedule. It should be noted that, having regard to the very large number of items in both documents, the deleted items were comparatively few in number. Further, I would point out that the items in the schedule were not intended strictly to reflect the total subject matter of the charge against the appellant, for it consisted only of those items found at the appellant's home on the day when he was arrested which have now been forfeited. The count is, however, intended to describe and reflect a course of conduct over nearly two-and-a-half years, during which, it was conceded in his record of interview, many items were bought (or acquired) and sold, those found at his home comprising essentially only the equivalent of his unsold stock.

The five grounds of appeal have some connection one with the other, but there was no ground to the effect that the sentence overall was manifestly excessive. I will turn to that matter, however, at the end of dealing with those five grounds.

The first ground was that "insufficient weight was given to the appellant's plea of guilt". Here counsel was forced to an assertion that this failure must be inferred from the sentence as a whole, notwithstanding direct and accurate references to his client's plea throughout the learned judge's sentencing remarks. The judge referred to the extensive admissions made in the detailed record of interview and noted correctly that the actual plea of guilty came at a late stage primarily because of the difference as to what was the appellant's own personal property, and that any other delay was not the fault of the appellant. I can see no substance in this ground as argued before this Court. If counsel was intending to argue that the length of the sentence betokened error, then I can still not discern any basis for attributing that to a failure to have sufficient regard to the plea of guilt. The ground has not been made out.

The second ground was that insufficient weight was given to the appellant's prospects for rehabilitation. Again it is hard to see what specific error was here committed by the judge, for no relevant reliance was placed on that issue before the judge nor is it now placed on anything which the judge said, and it was conceded that there was no direct evidence on rehabilitation. Certainly there were many references as to the appellant's good character and the evidence to that effect. All this was referred to by the judge, as was his otherwise good record in the community and generally as to his consistent employment record, as well as the absence of any convictions other than the one for burglary. No doubt the judge contemplated that the appellant might resume work in due course, if he were fit, as a salesman or disc-jockey, but there is no reason to believe that this was overlooked, for the non-parole period of three-and-a-half years was not unduly long by comparison with the head term. In short, there is nothing to show that his Honour gave other than appropriate weight to the appellant's prospects for rehabilitation.

The third ground alleged that insufficient weight was given to the appellant's lack of significant prior convictions. However, this fact was clearly recognised in the judge's description of his earlier conviction as a "minor conviction for burglary". For the rest, again I can see no failure to take proper account of this and the ground likewise fails.

The fourth ground appears to be based on a misconception in that it complains that "insufficient weight was given to the appellant's lack of subsequent offending". Counsel picked on some words in the sentencing remarks in which the learned judge said that he viewed certain allegations "with a substantial degree of disbelief", but that referred to an unsubstantiated claim that the appellant was forced into his two or so years of handling by "stand-over tactics". It was not intended to cover a brief reference to the accepted fact that he had not later offended. The fact that he had not later offended was not surprising since the handling ceased immediately at the time of the raid and just prior to the appellant's arrest. Thereafter he was on bail. Not surprisingly the judge said there was "no suggestion of subsequent re-offending". There is no substance in this ground.

Finally, by the fifth ground, it was claimed that insufficient attention was paid to the appellant's lengthy co-operation and negotiations with the informant and the Office of Public Prosecutions. This, to my way of thinking, was another misconception. The appellant undoubtedly co-operated in the interview process inasmuch as he made detailed admissions as to his own participation in the two-and-a-half years of handling stolen goods and in identifying in detail the relevant goods. This was clearly accepted by the learned judge; but what was said, correctly in my view, was that he had failed to give any useful information as to the many other persons with whom he had dealt. Doubtless there were reasons in his mind why he was unwilling to give precise names and addresses, which might have led to other arrests. He was not so much criticised for this (which was perhaps understandable), but he was not to be credited with doing that which he had not done, namely, to give the kind of full co-operation which might have led to practical results in the apprehension of other offenders involved in what seems to have been a detailed and comprehensive handling scheme. The police characterised the first names given by the appellant as "useless", and I can see no reason to disagree with that characterisation. Moreover, the judge made it clear in the course of the plea that, if the appellant had wished to make out the stand-over tactics alleged or that his information was of greater value to the police, he should have been called or given evidence to that effect. Through his counsel, he rejected that invitation. The judge made no error. The appellant was not to be treated as if he had been an informer or given information of like benefit, nor should he have been given a discount accordingly. This ground likewise fails.

There remains only the general assertion to which I have already adverted, that the judge overstated the evidence against the appellant. There was no ground to this effect and no application was made to amend. Strictly it cannot be considered as a ground but I have no doubt that the judge was correct in his description of the appellant's operation, which appears in his sentencing remarks. He there said that he was of "the firm opinion that the prisoner was a willing participant, had a successful and very professional operation distributing stolen property, that he had purchased or sold on consignment for a number of regular and irregular suppliers; that the operation continued for an extensive period, admitted by the prisoner to be two and a half years or thereabouts; that the prisoner was 'in it for the money'; that property was delivered to him on a regular, often daily, basis and regularly on-sold by the prisoner; that notwithstanding previous continuous dealings there was in the vicinity of $160,000 of admittedly stolen property confiscated by police as a result of the raid", which have already been described.

Even if there had been a ground based on error of the kind alleged, and even if there had been a ground based on manifest excess, I would not in these circumstances have held it to be made out. It is strictly unnecessary to express this view, but I do so because of the manner in which the argument was put before the Court. The evidence, as admitted by the appellant, pointed to a deliberate, well-planned, long-term business of handling goods both on purchase and on consignment. Although the value of the goods in fact was in the range of $160,000, it is clear that the business, if I can so describe it, turned over much more in the two or more years in which the appellant was operating. The fact that his bank account did not disclose a large credit balance does not convince me that substantial sums were not obtained over the years by the appellant. On no basis should the sentence be set aside.

The order of the Court is that the appeal be dismissed.

(Confiscation of Profits) Act 1986

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