R v Walden [2001] NSWCCA 365

New South Wales Court of Criminal Appeal

CITATION : R v Walden [2001] NSWCCA 365 revised - 8/10/2001 FILE NUMBER(S) : CCA 60259/01 HEARING DATE(S) : 14/9/01 JUDGMENT DATE : 14 September 2001

PARTIES : Regina Brian Joseph Walden JUDGMENT OF : Sully J at 1, 27; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0072; 00/61/0011 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : G E Smith (Crown) P J D Hamill (Applicant) SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Sentencing - appeal against severity (2)- obtain money by deception -receiving (2) - extent of loss to owners/insurers not established at trial - alleged failure of trial judge to consider principle of totality. LEGISLATION CITED : Crimes Act 1900 CASES CITED: Mill v The Queen (1988) 168 CLR 599 DECISION : Leave to appeal granted. Appeal dismissed.

- 6 -IN THE COURT OF CRIMINAL APPEAL 60259/01 SULLY J CARRUTHERS AJ Friday 14 September 2001 Regina v Brian Joseph Walden

JUDGMENT 1 SULLY J: I will ask Mr Acting Justice Carruthers to deliver judgment. 2 CARRUTHERS AJ: Brian Joseph Walden seeks leave to appeal against sentences imposed upon him by his Honour Judge Gibson QC at the Bathurst District Court on 23 April 2001 when the applicant pleaded guilty to an indictment containing four counts. The first and third counts charged offences of obtain money by deception under s 178BA(1) of the Crimes Act 1900, which carries a maximum penalty of 5 years imprisonment. 3 The second count was under s 188 of the Act, a count of receiving stolen property, which offence carries a maximum penalty of 10 years imprisonment. 4 The fourth count was one of receiving goods out of New South Wales under s 189A (1) of the Act, which offence carries a maximum penalty of 10 years imprisonment. 5 The offences were committed over the period between 4 December 1996 and 27 October 1998. 6 With regard to counts 1 and 3, his Honour sentenced the applicant on each count to a fixed term of 15 months imprisonment to commence on 23 April 2001 and to expire on 22 July 2002. 7 With respect to count 2, his Honour sentenced the applicant to 29 months imprisonment with a non-parole period of 2 years to commence on 23 April 2001 and to expire on 22 April 2003. 8 With respect to count 4, his Honour sentenced the applicant to 32 months imprisonment with a non-parole period of 2 years to commence on 23 April 2001 and to expire on 22 April 2003. 9 Thus, the effective sentence overall is that of 32 months imprisonment with a non-parole period of two years, his Honour taking the view that there were no special circumstances. 10 The applicant was born on 8 December 1952. He is married with two children, one of whom, unfortunately, has a very serious permanent illness. 11 His criminal record dates back to 6 April 1970. Two matters in that prior criminal record merit attention. On 29 June 1994, at the Sydney District Court, the applicant was convicted of receiving stolen property outside New South Wales. Sentence was deferred on his entering a recognisance, self in the sum of $3,000 to be of good behaviour for three years. Thus, that recognisance was still current at the time the first of the subject offences was committed. 12 Later, on 16 September 1998, at the Lithgow Local Court, in relation to a conviction for steal motor vehicle, the applicant was sentenced to four months periodic detention and ordered to pay compensation. 13 The applicant, at the time of the subject offences, owned a small business manufacturing metal components used in the concrete industry. The business employed four full-time staff and the applicant's younger son. The business was in dire financial straits at the time of the commission of the subject offences. 14 Very briefly stated, the money he obtained by deception offences involved the applicant being associated with the making of false claims against an insurance company on the pretence that vehicles with which he had some connection were in fact stolen. The applicant's wife was involved, to his knowledge and encouragement, in the first of these offences. 15 Vehicles to the value of some $80,000 in aggregate were involved. 16 The second and fourth counts related to the applicant's involvement in the reberthing of two stolen prime movers. In relation to the vehicle that was the subject of the fourth count, the applicant purchased this vehicle but declined to inform the investigating police officers who sold it to him. In this regard his Honour said: "I can understand why he says that it would be a dangerous thing and it may well be. But whilst people are prepared to buy stolen goods that are not prepared to do anything about who the thief was, then they cannot expect much sympathy from the courts. He does not give any thought when he buys these vehicles to where they might have come from and who he might have been disadvantaging as a result of what his conduct was."