New South Wales Court of Criminal Appeal CITATION : REGINA v DARWICHE [1999] NSWCCA 293 FILE NUMBER(S) : CCA 60374/99 HEARING DATE(S) : 15/09/99 JUDGMENT DATE : 15 September 1999 PARTIES : Regina Michael Darwiche JUDGMENT OF : Spigelman CJ at 1; Newman J at 23; Sully J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/11/0659 LOWER COURT JUDICIAL OFFICER : Shillington DCJ COUNSEL : A M Webb (Applicant) C K Maxwell QC (Crown) SOLICITORS : T A Murphy (Applicant) S E O'Connor (Crown) CATCHWORDS : SENTENCING; justifiable sense of grievance; lack of parity; discount for assistance given to authorities; SENTENCING; discretion to refer for assessment for home detention Crimes Act 1900 (NSW) ACTS CITED : Home Detention Act 1966 (NSW) Sentencing Act 1989 (NSW) DECISION : 1 Leave to appeal granted; 2 Appeal allowed; 3 Sentence quashed; 4 Appellant resentenced to penal servitude for 8 months comprising a minimum term of 4 months and an additional term of 4 months. - 7 - IN THE COURT OF CRIMINAL APPEAL 60374/99 SPIGELMAN CJ NEWMAN J SULLY J Wednesday 15 September 1999 REGINA v Michael DARWICHE JUDGMENT 1 SPIGELMAN CJ: The Applicant seeks leave to appeal from the sentence imposed upon him by his Honour Shillington DCJ in the District Court on 11 June 1999. He was sentenced to a term of nine months penal servitude consisting if a minimum term of eighteen months and an additional term of nine months. The Applicant pleaded guilty to three charges of receiving property knowing the same to have been stolen contrary to s188 of the Crimes Act 1900 (NSW). The property in each case was a motor vehicle. He asked that two other occasions of receiving stolen vehicles be taken into account on a Form 1. 2 The Applicant was sentenced, together with his brother Albert Darwiche, who pleaded guilty to stealing the three vehicles the subject of each of the three receiving counts against the Applicant. Albert Darwiche also asked that the two acts of receiving, identical to those which the Applicant asked be taken into account, should also be taken into account in his case on a Form 1. 3 The maximum penalty under s188 of the Crimes Act is ten years. Both brothers were sentenced to the same eighteen months penal servitude. 4 At the time of the offences, Albert Darwiche was the registered owner of a business, Karmart, and was a licensee under the Motor Dealers Act 1874 (NSW). The Applicant worked with his brother in this business which was involved in panel beating. 5 His Honour found that the two brothers committed the respective criminal acts, with respect to the various vehicles concerned in the three charges and the Form 1, for the purpose of monetary gain. His Honour found that the two brothers were acting together on the occasion of the commission of the criminal offences and that they had used their expertise gained in the panel beating industry to commit these offences. 6 His Honour made findings of fact in respect of the transformation of one of the stolen vehicles, that originally had the registration number RDL853. His Honour accepted the evidence from the user of that vehicle and another witness, which identified it as the same vehicle that now had the registration number SKB417. His Honour drew the conclusion that the vehicle had been, in the colloquial expression, "rebirthed", with new registration plates. 7 In an important passage in his remarks on sentence his Honour said: "It is again quite clear that general deterrence is a matter which the Court must take into account. Our community has a huge illegal industry in the stealing of motor vehicles and their reconstitution, and that is a matter which I must take very much into account." 8 The plea of guilty occurred some eleven days into a trial in which each of the brothers was charged with ten separate matters. Difficulties emerged with the Crown case. It appeared that the jury may have to be discharged. In the event, the final charges were lain and pleas of guilty made to them. His Honour indicated that the pleas of guilty were entitled to a higher recognition than may usually have been the case after a trial had been continuing for some time. It appeared to his Honour that the pleas had saved the State from having to run a new trial. 9 His Honour made reference to pre-sentence reports which he had received in each case. He identified a number of subjective features of the individual cases which were material to be taken into account on the issue of sentence. He gave particular emphasis to the serious back injuries which Albert Darwiche had suffered. He also noted the particular family circumstances of the Applicant who had two young children and a further child about to be born. The Court was informed that the new baby is now six weeks old. 10 Of particular significance in this case were the matters which had been brought to his Honour's attention with respect to assistance to the authorities in the case of the Applicant. His Honour concluded: "I bear in mind the matters relating to Michael Darwiche which I have last alluded to, and in respect to Albert Darwiche, the state of health which I have already referred to. It seems to me that both of these matters should result in similar sentences being imposed ultimately." 11 On behalf of the Applicant a number of submissions were made. Their starting point was the proposition that the sentence imposed on the Applicant was accepted to be within the range of sentences available to his Honour. This concession was properly made. In the circumstances of this case a total period of eighteen months from a maximum sentence of ten years could not of itself be regarded as excessively severe. Indeed, it would be regarded as towards the bottom of the range. 12 It was submitted that his honour erred in declining to order a report assessing the suitability of each of the prisoners for home detention. The Court's power to refer a person for assessment under s9 of the Home Detention Act 1966 (NSW) is a discretionary power. His Honour did not expressly refer to any reasons for refusing to make a reference, however no complaint is made of his Honour's remarks on sentence in that respect. 13 It is clear that his Honour would have had in mind the significance of general deterrence with respect to the particular kinds of offences under consideration, to which he had earlier referred in his judgment as quoted above. This was a matter which it was open to his Honour to, not only take into account, but to give determinative weight in the exercise of this discretion. Notwithstanding the personal family circumstances, the refusal of a reference under s9 of the Home Detention Act was open to his Honour. 14 Submissions were made that there were some reasons to believe that the brothers were not equally culpable with respect to the crimes. In each of the three cases Albert Darwiche was charged and pleaded guilty to stealing, whereas Michael Darwiche was charged and pleaded guilty to receiving the same vehicles. 15 In my opinion there was every reason to accept that a starting point for the sentencing in these two cases was one of equality. There are circumstances in which the act of receiving may be seen as involving a higher or, indeed, on occasions, a lesser, degree of culpability than the act of stealing. However, in a case such as the present where two brothers have each committed a series of related acts, one stealing motor vehicles and the other receiving motor vehicles, I do not see that anything other than the starting point of equal culpability was appropriate with respect to the objective circumstances of the case. On no basis could one identify any legal error in adopting such a starting point. 16 Of more significance in the present case, is the submission made on behalf of the Applicant that his Honour appeared to equate the assistance to the authorities given by the Applicant with the state of health of his brother, as his Honour did in the extract from his remarks on sentence I have quoted above. It was submitted that this gave rise to a lack of parity and a justifiable sense of grievance, on the basis that the assistance was not given appropriate weight in the size of the discount having in mind the provisions of s442B of the Crimes Act. 17 It appears that what his Honour had in mind was some sort of equality between the two brothers with respect to the hardship which each would suffer during the period of their imprisonment. Albert Darwiche, by reason of his back injury, and the Applicant by reason of the protective treatment in prison he would receive by reason of his assistance. This was accepted as the basis for his Honour's equation of the two cases, in submissions for the Crown to this Court. 18 I agree that from the perspective of the hardship that each would suffer during imprisonment, it was open to his Honour to find an equality in this respect. However, the value of assistance to the authorities is not to be measured only by the greater hardship to be suffered by the prisoner. Rather, it entitles a person to a discount of substance by reason of the intrinsic value of the assistance provided to the State. It appears to me that his Honour failed to approach the sentencing task on this basis and, accordingly, erred in the exercise of the discretion. 19 In the present case, I have read the material in the envelope on the nature of the assistance and form the view that it is entitled to significant weight under s442B of the Crimes Act. Equality of sentence between the two brothers does constitute a disparity which gives rise to a justifiable sense of grievance. 20 His Honour found special circumstances in the case but gave no reasons which identified what they were, contrary to the requirements of s5(3) of the Sentencing Act 1989 (NSW). As the discretion falls to be exercised afresh, it is now necessary to do so. I am unable to detect any special circumstances in the material before the trial judge save in one respect, the contents of the envelope. The fact that he has a young family is not such a circumstance in my opinion. 21 The position is somewhat different on appeal. In the context of parity, the minimum term should be seen to be significantly less than that imposed on his co-offender. Further, having regard to the content of the envelope, a period of longer than usual supervision appears to me to be appropriate. 22 Accordingly, the order I propose is: Leave to appeal granted. Sentence quashed. The Appellant is sentenced to penal servitude for eight months comprising a minimum term of four months and an additional term of four months. The Appellant is to be released on parole on 10 October 1999. 23 NEWMAN J: I agree with the reasons given by the Chief Justice and the orders he proposes. 24 SULLY J: I also agree. 25 SPIGELMAN CJ: The orders are as I have indicated. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.