Vassiliou v R [1999] WASCA 140

Court of Appeal (WA)|1999-08-03|Before: White J, Ipp J, Anderson J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : VASSILIOU -v- R [1999] WASCA 140

Criminal law - Sentence - Receiving stolen property - Applicant convicted on own plea of 10 counts of receiving stolen property - Sentence of 3 years' imprisonment, concurrent, on each count not set aside as excessive

BAC v The Queen, unreported; CCA SCt of WA; Library No 950510; 25 September 1995

Ford v R, unreported; CCA SCt of WA; Library No 980450; 11 August 1998

Hobson v R, unreported; CCA SCt of WA; Library No 930715; 17 December 1993

Jaffrey v R, unreported; CCA SCt of WA; Library No 950352; 27 July 1995

Jessop v R, unreported; CCA SCt of WA; Library No 960644; 8 November 1996

Mignacca v R, unreported; CCA SCt of WA; Library No 930348; 23 June 1993

R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

R v Liddington (1997) 18 WAR 394

Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998

Russon v R, unreported; CCA SCt of WA; Library No 950725; 21 December 1995

Thompson v R, unreported; CCA SCt of WA; Library No 970435; 5 September 1997

Verschuren v R (1996) 17 WAR 467

Weng Keong Chan v The Queen (1989) 38 A Crim R 337

1 IPP J: I agree with the reasons to be given by White J and have nothing to add.

3 WHITE J: This is an application for leave to appeal against sentence. On 4 March 1999, the applicant was convicted on his own plea of guilty of 10 counts of receiving stolen property, well knowing it to have been stolen. The offences took place on various dates between 3 March 1997 and 23 October 1997, and involved property the proceeds of 10 different burglaries. The applicant had previously received suspended sentences of 12 months' imprisonment imposed on 5 February 1997, and of 18 months' imprisonment imposed on 9 July 1997.

4 The applicant is 22 years of age, and his criminal record includes one count of burglary. On 5 March 1999, the applicant was sentenced to a term of 3 years' imprisonment on each of the 10 counts of receiving, all such sentences to be served concurrently with one another. The Court directed that he was to be eligible for parole. The sentences were fixed after the learned sentencing Judge gave credit for the plea of guilty. The amended grounds of appeal are:

"1. The sentence imposed by the learned sentencing Judge is manifestly excessive having regard to:

(a) The penalties imposed for similar offences in this State; and

2. In particular, the learned sentencing Judge erred in law and in fact in failing to take into account:

(b) The fact that the applicant had not offended during the 17 month period between being charged for these offences and being sentenced;

(c) The Applicant's early plea of guilty taking into account a decision by the Prosecuting authorities not to prosecute his brother and some dispute in relation to matters to be relied upon by the Crown in sentencing; and

(d) The impact of a close friend's death on the Applicant leading to depression and cannabis and alcohol abuse by the Applicant during the period of offending."

"The Courts properly consider 'offences of receiving to be of a seriousness, equal to or greater than the offences by which the goods provided to the receiver are originally obtained. Those offences, involving the stealing of property, are in a very real sense facilitated by the capacity to dispose of stolen goods to a receiver': Harwood -v- R (unreported CCA WA Lib No 950372);"

6 The applicant submits, however, that sentences in the range of 18 months to 2 years and 6 months have been imposed in recent times in this State, and a number of authorities are cited in support of that proposition. The respondent disputes that submission and submits that a sentence of 3 years' imprisonment for receiving stolen property is well within the range of the learned sentencing Judge's discretion.

7 In Harwood v R, unreported; CCA SCt of WA; Library No 950372; 27 July 1995, an aggregate sentence of 3 years' imprisonment for 15 counts of receiving was held to be not excessive. In that matter, Murray J, with whose remarks the Chief Justice agreed, said at 2:

"It remains the case, in my view, that the courts should properly consider offences of receiving to be of a seriousness, equal to or greater than the offences by which the goods provided to the receiver are originally obtained. Those offences, involving the stealing of property, are in a very real sense facilitated by the capacity to dispose of stolen goods to a receiver."

8 In Negri v R, unreported; CCA SCt of WA; Library No 980649; 18 September 1998, a sentence of 4 years' imprisonment imposed following a plea of guilty to six offences of receiving stolen property was not disturbed on appeal. In Quinn v R, unreported; CCA SC of WA; Library No 930709; 10 December 1993, a sentence of 3-1/2 years' imprisonment following a plea of guilty to three counts of receiving was confirmed on appeal.

9 I accept the submissions made on behalf of the Crown in the written submissions that, in any event, the compilation of a range of sentences that are commonly imposed for particular types of cases performs only the limited function of providing broad guidance. A sentencing Judge must balance, and be able to give proper weight to the many aggravating and mitigating factors that would apply in a particular case.

10 I also accept the submissions that the learned sentencing Judge in this matter made express reference to the pre-sentence report, and it is clear that he relied extensively on it in his sentencing remarks. That report contained references to the death of the applicant's friend, and of course, simply because the learned sentencing Judge did not specifically refer to some matters when passing sentence, does not mean he did not take them into account. Reference is made to Nevermann (1989) 43 A Crim R 347, per Malcolm CJ, at 350.

11 The transcript of the proceedings in the District Court before his Honour Judge Gunning on 9 July 1997, to which we have been referred, shows that the representations then made by the applicant's counsel in relation to substance abuse and depression seem inconsistent with the submissions made in this appeal.

12 While a plea of guilty will give rise to a significant reduction in sentence, the amount of that reduction is not the subject of any tariff and is a matter for the discretion of the individual Judge. The pre-sentence report assessed the applicant as having a high risk of re-offending and did not recommend further non-custodial dispositions as a viable proposition.

13 The conduct the subject of the indictment was committed shortly after the applicant had been made the subject of orders suspending terms of imprisonment. Accordingly, it was well warranted that the immediate service of a sentence of imprisonment should be imposed. It is not apparent to me what relevance to the 10 counts of receiving stolen property, the impact of the death of the applicant's close friend, and any cannabis and alcohol abuse that he may have indulged in may have. The applicant has not attempted to demonstrate a causal connection between that reactive depression on the part of the applicant or his alleged substance abuse and the commission of the offences of receiving stolen property.

14 In my opinion, none of the grounds of appeal has been made out. In the result, I would grant leave to appeal, but I would dismiss the appeal.

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