R v BURRELL [1999] NSWCCA 139

New South Wales Court of Criminal Appeal CITATION : R v BURRELL [1999] NSWCCA 139 FILE NUMBER(S) : CCA 60655/98 HEARING DATE(S) : 26 May 1999 JUDGMENT DATE : 26 May 1999

Regina (Crown)

PARTIES : v

Bruce Allan BURRELL (Applicant) JUDGMENT OF : Barr J at 1; McInerney AJ at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0272 LOWER COURT JUDICIAL OFFICER : Luland DCJ

LMB Lamprati (Crown) COUNSEL : JI Doris (Applicant) CK Smith (Crown) SOLICITORS : JC Walsh & Sons (Applicant) CATCHWORDS : Criminal Law - whether sentences excessive ACTS CITED : s 5(1) Home Detention Act 1985 DECISION : Leave to appeal granted; Appeal allowed; Sentences on counts 2, 3, 4 and 5 quashed; See para 23 for sentences imposed in lieu

IN THE COURT OF CRIMINAL APPEAL 60655/98

BARR J McINERNEY AJ

Wednesday, 26 May 1999 REGINA v Bruce Allan BURRELL JUDGMENT

1 BARR J: Bruce Allan Burrell seeks leave to appeal against sentences imposed by Judge Luland, QC, in the District Court. The applicant was called on for trial on 3 August 1998 and pleaded guilty to one count of larceny as a bailee, three counts of receiving stolen motor vehicles, one count of disposing of a stolen motor vehicle, and one count of possessing a prohibited weapon. 2 He was remanded for sentence and eventually came before Judge Luland. On the counts of larceny as a bailee and possessing a prohibited weapon his Honour sentenced the applicant to concurrent terms each of six months penal servitude. On counts of receiving a stolen Suzuki motor vehicle, disposing of the stolen Suzuki motor vehicle, and receiving a stolen Pajero motor vehicle he was sentenced to concurrent fixed terms each of one year six months accumulated upon the two six month fixed terms. For the offence of receiving a stolen Jaguar motor vehicle he was sentenced to penal servitude for three years, comprising a minimum term of two years accumulated upon the two six month fixed terms and an additional term of one year. 3 In sentencing the applicant for this offence his Honour took into account pursuant to s 21 of the Criminal Procedure Act four offences; namely, having registration plates calculated to deceive, driving an unregistered motor vehicle, driving an uninsured motor vehicle and using a firearm without a licence or permit. 4 The total effective sentence was three and a half years penal servitude, comprising a minimum term of two and a half years and an additional term of one year. 5 The offence the subject of the first count occurred in 1992. The applicant had been given a Ruger rifle by a man to sell on his behalf. Later on he told the owner that it had been stolen. That statement was false. The rifle was found at the applicant's house during a search carried on in May 1997. During the same search a crossbow and bolts were found in the applicant's wardrobe. He said he was minding them for a friend and was unaware that it was a prohibited weapon. That was the offence charged in the sixth count. 6 On 16 May 1997 police saw the applicant driving a Mitsubishi Pajero in Goulburn. The registration plates on the vehicle were ascertained to belong to another vehicle and that prompted police enquiries, which showed that the Pajero had been stolen in October 1993. The applicant was interviewed about it and said he had purchased the vehicle in 1993 for $17,000 cash from a man called Tony. He admitted having had a suspicion that the vehicle may have been stolen. It was worth over $43,000 at the time. That was the fifth count. 7 On 21 May 1997 police searched the applicant's property and found a 1995 Jaguar motor vehicle bearing number plates which turned out to have belonged to a stolen Suzuki Vitara. In a formal interview the applicant admitted purchasing the Vitara for $5,800 after reading an advertisement in a newspaper. It was worth $16,000 at the time. The applicant went on to say that he had sold the Vitara in December 1996 for $7,000. The receiving was charged in the second count and the disposal in the fourth. 8 The second, fourth and fifth counts resulted in the concurrent fixed terms of one year six months. 9 The third count concerned the Jaguar which the police had found. It had been stolen in November 1995 from a firm of car dealers. It was worth almost $140,000. The applicant told the police he had bought it for $25,000 from a man called Tony, whom he met in a hotel in Sydney. He had a good idea the car was stolen. He had been using it since 1995. 10 The matters taken into account in the imposition of sentences on that count concerned the use of registration plates on the Pajero and driving the Pajero unregistered and uninsured, as well as using a revolver on an occasion in 1990 without being authorised to do so by licence or permit. 11 The first ground of appeal asserts that the six-month concurrent fixed terms imposed for the first and sixth counts were manifestly excessive. It was submitted, given that his Honour had regarded the applicant as a first offender, that this was effectively a conviction on a first offence of larceny following a plea of guilty. The objective gravity of the offence was not high and if the applicant had stood for sentence on that matter alone a range of non-custodial options would have been available to the sentencing judge. It was submitted that the offence occurred within the time span of the other offences in the indictment and it would therefore have been appropriate to construct a sentencing regime which did not entail an additional period in custody for the first count. 12 I think the submission well made that the applicant was being sentenced as a first offender and that if the plea had stood alone one might have expected to see a more lenient result. 13 It was submitted in respect to the sixth count that the catalogue of armaments in the schedule to the Firearms Act lists weapons more dangerous than a crossbow. The applicant gave an explanation to the police when asked about his possession of the crossbow. He told the police that a friend, whom he named, had on an occasion a long time earlier left the weapon at his property, having brought it there, unexpectedly to the applicant, on a weekend's shooting. The applicant said that he did not know that the crossbow was a dangerous weapon, the possession of which was prohibited without a licence or a permit. The police followed up those enquiries and it was ascertained that the applicant had given a true account. 14 It seems to me that in the circumstances that offence was not one of the most serious that one would find under the appropriate section of the Firearms Act. I think that the attack on the sixth month fixed terms on the first and sixth counts is made out and, in my opinion, justice would be done by adjusting the commencement dates of the remaining counts so as to coincide with the commencement of the fixed terms for counts 1 and 6. 15 The second ground of appeal attacked the length of the sentences imposed on the receiving counts by reference to sentencing statistics. It was submitted that within the past eight years there has been no sentence of this magnitude in a comparable case. However, the statistics relied on related to offenders who had no prior convictions. Although his Honour dealt with the applicant in the initial stages upon the proper basis that the stealing of the rifle was effectively a first offence, that was not the appropriate basis for dealing with the remaining offences, which took place over a number of years between 1992 and 1997. 16 It is more appropriate, if statistics are to be considered, to look at cases in which offenders have had prior convictions. Statistics tendered by the Crown show that between 1990 and 1998 fifty-one cases of receiving have been dealt with in the higher courts and that they have produced a range of minimum or fixed terms varying between six months and five years and a range of total terms ranging from six months to seven years. 17 It seems to me that one cannot conclude by reference to statistical information that the sentences imposed by his Honour were outside the available range of his Honour's sentencing discretion. 18 In the third ground of appeal it was submitted that his Honour had erred in principle in giving insufficient weight to the age and previous good character of the applicant. It was submitted that proper weight ought to have been given to the long life the applicant had spent before beginning to offend, which significantly mitigated the penalties which would otherwise have been appropriate. The applicant was born in 1953 and was in his mid-forties when sentenced. 19 I think that the submission is well made for the first of the two offences charged; namely, the theft of the rifle and the receiving of the motor vehicle. However, the other offences were not committed until 1993, 1995, 1996 and 1997. It could not be maintained that over the period of years the applicant had continued to be a man of good character. By the time he committed the third of the offences charged he had already stolen a rifle and received a vehicle he knew to be stolen. 20 It was submitted that the overall sentence imposed was so long that the applicant had been inappropriately denied the opportunity of consideration of home detention. By s 5(1) of the Home Detention Act 1986, home detention may be imposed only where the fixed or aggregate term does not exceed eighteen months. Such a short term was, in my opinion, entirely out of the question in this case. 21 I think that his Honour succeeded in his intention to impose for counts 2, 3, 4 and 5 a total effective sentence which matched the applicant's total criminality. The offences were more serious in combination and called for a substantial punishment to deter others from acting in a similar systematically criminal manner. I do not think that, viewed as a whole, the sentences fall outside the proper range of his Honour's sentencing discretion. 22 I would make the following orders. 23 Grant leave to appeal. Allow appeal. Quash the sentences for counts 2, 3, 4 and 5 and impose the following sentences in lieu. On each of counts 2, 4 and 5 a fixed term of one year and six months commencing on 20 October 1998 and expiring on 19 April 2000; on count 3 penal servitude for three years comprising a minimum term of two years commencing on 20 October 1998 and expiring on 19 October 2000 and an additional term of one year commencing on 20 October 2000 and expiring on 19 October 2001. 24 The applicant will become eligible for release on parole on 19 October 2000. 25 McINERNEY AJ: I agree with the orders proposed. 26 BARR J: The orders of the Court are therefore as I have proposed. **********