Regina v Kurtzman [1999] NSWCCA 215

New South Wales Court of Criminal Appeal CITATION : Regina v Kurtzman [1999] NSWCCA 215 FILE NUMBER(S) : CCA 60155/99 HEARING DATE(S) : 19 July 1999 JUDGMENT DATE : 19 July 1999

PARTIES : Regina v Desmond Bryce Kurtzman JUDGMENT OF : Studdert J at 16; Smart AJ at 1-15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/71/0027 LOWER COURT JUDICIAL OFFICER : Twigg DCJ

COUNSEL : D G Dalton for the Appellant R D Ellis for the Respondent SOLICITORS : Mackenzie & Vardanega for the Appellant S E O'Connor for the Respondent CATCHWORDS : Criminal Law; Travelling involved in serving periodic detention and absence from business when alternative is full-time custody. ACTS CITED : -Nil- CASES CITED: -Nil- DECISION : Leave to appeal against sentence granted.; Appeal dismissed.

- 8 - IN THE COURT OF CRIMINAL APPEAL No 60155/99

STUDDERT J SMART AJ

MONDAY 19 JULY 1999

REGINA v DESMOND BRYCE KURTZMAN

JUDGMENT

1 SMART AJ : Desmond Bryce Kurtzman seeks leave to appeal against the severity of a sentence of two years' periodic detention. He does not seek to disturb the order that he pay compensation of $29,259 by quarterly instalments of $3000. This was the value of the goods taken. 2 The principal issue on the hearing of this application was the length of the term of periodic detention. The applicant pleaded guilty to three charges of disposing of property knowing it to have been stolen outside the State. In late October 1994 Joseph & Company imported 4600 metric tonnes of soya bean meal by ship. This cargo was off-loaded between 29 October and 1 November 1994 at the Appleton Dock, Fitzroy, Victoria, and was to be transported to a storage facility at Yarraville. 3 The applicant was employed as a sub-contractor to so transport the soya bean meal. During the period of off-loading and transporting the soya bean meal the applicant delivered 82,420 tonnes of soya bean meal to the premises of Intergrain Produce Company at Moama by three separate deliveries on 29, 30 and 31 October 1994 respectively. That firm was owned by Raymond John Moore. 4 The applicant said that he made these deliveries without any prior arrangement with Moore to accept these loads, knowing that it was illegally obtained, expecting to be later paid a price and knowing that Moore would not take advantage of him. The applicant was paid about $8000 per load by Moore. The applicant did not tell Moore that it was illegally obtained and Moore did not ask questions. The ruling market price was about $355 per tonne in contrast to the $280 to $290 per tonne paid by Moore. 5 The offences to which the applicant pleaded guilty were both substantial and serious ones of dishonesty. They were part of a broader scheme in which others were involved but, for the purposes of these sentencing proceedings, although there is the background of these other matters we are dealing with the offences to which the applicant pleaded guilty. 6 In considering the plea of guilty and the discount which should be given the judge had regard to the history of the matter. In 1997 the applicant had been jointly indicted with Moore on sixteen charges. The applicant pleaded not guilty. That trial was aborted after some days when the applicant's solicitor revealed that he had no right to appear in a New South Wales Court and the applicant withdrew his instructions. A new trial was ordered. 7 On 15 March 1999 the applicant continued his plea of not guilty. During the latter part of March 1999 the prosecution reduced the charges to three and the applicant agreed to give evidence in the trial against Moore. The applicant pleaded guilty immediately upon being re-indicted. The judge thought that it was inevitable that the applicant would be convicted of the three charges. 8 Leaving aside the costs of the discontinued trial in 1997 the judge acknowledged that the applicant had saved the costs of a trial against him although he was to be tried jointly with Moore, whose trial was currently continuing. The applicant's counsel told us that the applicant was not aware that his solicitor had no right of audience until shortly before it was revealed in Court. The judge recorded what had taken place. Much of the usual cost associated with a plea of not guilty was not avoided by the plea of guilty in the present case. Nevertheless, the applicant was entitled to credit for his plea of guilty as I think the judge recognised. 9 The applicant also complained that the judge did not allow sufficient discount for the applicant's assistance to the authorities. It was open to the judge to take the view, despite the submissions of the parties, that the applicant could be of marginal assistance only to the Crown. Subsequent events revealed that the judge's assessment was correct. See the judge's remarks on sentence in Moore . The judge, who presided at Moore's trial, commented that the applicant's evidence helped the Moore defence and was so useless that he took some seven charges from the jury. The applicant's assistance to the prosecution was much less than marginal. 10 The judge dealt with the applicant's subjective features at some length. It is not necessary to recapitulate them. The judge concluded that he was persuaded by the financial situation, background, good character, work ethic and the applicant's limited involvement in the circumstances of the case which involved the theft and disposal of 563 tonnes of soya bean meal, that it was inappropriate to impose a full-time custodial sentence. The judge stressed the need for general and particular deterrence and was right to do so. The judge took into account the applicant's age of fifty-six years (born 14 April 1942) and his circumstances. He thought that a substantial term of periodic detention was appropriate. Bearing in mind the applicant's strained financial circumstances and his offer of restitution, the judge declined to impose the further penalty of a fine. 11 The applicant has to serve his periodic detention at the Mannus Correctional Centre. He has complained that that involves a round journey of about 600 kilometres; there is no closer periodic detention centre. The applicant has complained of the expense but that has reduced now that he catches the bus. However, serving periodic detention also takes him away from his business from lunch time on Friday to late on Sunday. His supervision and direction are missing and this is important especially in relation to his wood-carrying business. He has to liaise extensively with others. 12 The applicant complained that the judge did not specifically advert to these matters and the hardship that it would occasion him by having to serve periodic detention at Mannus. At the end of his re-examination a series of questions were addressed to the applicant. The applicant was asked how far it was from Griffith to Mannus and he replied that he did not know. He was then asked how far was it from Griffith to Wagga Wagga and the reply was 120 miles. Those questions were directed to what would be involved in serving periodic detention. The judge was sitting in Albury; it was known that the applicant came from the Griffith area and it was known that a journey would have to be made from that area to the Mannus Correctional Centre. It is a burden to have to travel from the applicant's residence in the Griffith area to Mannus but this burden is an easier one than being in full-time custody, as everyone acknowledged. 13 To date the applicant has attended every weekend to serve his periodic detention. In the normal course he will switch to the equivalent of community service in December 1999. There is no reason why that cannot be served in the Griffith area. 14 At the start of the hearing the Court enquired as to the position in relation to the compensation payments. We were told by the applicant's counsel that none had been made and that the applicant was under the understanding that they did not have to be made until July. When the true position was pointed out, and it appears clearly from the judge's reasons and the judge's orders, some $6000 has today been paid by way of compensation to the District Court. Any breach in that regard has been rectified. 15 It was urged upon the Court that the appropriate course would be to reduce the term of periodic detention and on the third count to substitute a recognizance and make it a condition of that recognizance that the applicant pay compensation as originally ordered. That was a course which was open to the judge. However, in my opinion, given the degree of criminality involved, a sentence of two years' periodic detention was not only permissible but correct. I see no error and certainly no appealable error in the course taken by the judge. In my opinion matters of substance have been argued and therefore leave to appeal should be granted but the appeal should be dismissed. 16 STUDDERT J : I agree. The orders of the Court therefore will be as proposed by Mr Acting Justice Smart. ************