Regina v Coleas [2002] NSWCCA 204

New South Wales Court of Criminal Appeal

CITATION : Regina v Coleas [2002] NSWCCA 204 FILE NUMBER(S) : CCA 60051/02 HEARING DATE(S) : 23 May 2002 JUDGMENT DATE : 23 May 2002

PARTIES : Arthur Peter Coleas v Regina JUDGMENT OF : Dowd J at 1, 39; Smart AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/51/0113 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : (A) H Dhanji (C) P G Ingram SOLICITORS : (A) D J Hu,mphreys (C) S E O'Connor CATCHWORDS : Sentencing - failure to allow for assistance to authorities LEGISLATION CITED : Nil CASES CITED: Nil DECISION : See para 38

IN THE COURT OF CRIMINAL APPEAL 60051/02 DOWD J SMART AJ Thursday, 23 May 2002 REGINA v ARTHUR PETE R COLEAS JUDGMENT 1. DOWD J: The court is in a position to give judgment in this matter. Smart AJ will give the first judgment. 2. SMART AJ: Arthur Peter Coleas seeks leave to appeal against the severity of a sentence of imprisonment of sixteen months with a non-parole period of nine months for the offence of conspiracy to steal on about 31 October 2000. The appellant pleaded guilty before the magistrate. He was a relatively minor player in the conspiracy. 3. The following is an outline of the facts. About 5.20am on 31 October 2000 Michael Gillespie was driving a semi-trailer from Sydney to Brisbane. It was loaded with a large quantity of computers, mobile telephones and other electronic equipment valued at about $400,000. He falsely claimed that he had been directed to a rest area about sixteen kilometres south of Woodburn and had there been held up and the cargo of the semi-trailer stolen. He also falsely claimed that he had been tied up and that it took some hours for him to get free and alert other trucks by way of his radio. There was no evidence that the applicant was aware that such deception was to take place. 4. The cargo was offloaded into a pantechnicon which had been hired. There were in fact two pantechnicons but the larger one alone was used. Both had been hired from a rental company on 30 October 2000. The larger one was driven by the offender Rangihaeata with the offender Rutter being present as a relief driver. The offender Darren Williams was a passenger in the vehicle, he not having a licence to drive heavy vehicles. 5. The original conspirators were Williams, Michael Gillespie and his brother, Peter Gillespie. The offender Miers joined the conspiracy. The applicant was recruited by Williams at a later time. The applicant was given a bare outline of what was going to happen. 6. About 14 October 2000 the applicant had called on Williams at his property about another matter. Peter Gillespie was there. He became interested in acquiring the BMW vehicle of the applicant or his company. Peter Gillespie promised to pay the balance of the money due at a later date. Williams assured the applicant that Peter Gillespie was "all right with the money". On that day Williams and Peter Gillespie were planning the conspiracy to steal but the applicant did not realise this. The non-payment of these moneys was to put Williams in a dominant position qua the applicant.. 7. The applicant used a truck in his business of reconditioning, selling and transporting pallets. It was out of commission and the applicant needed a substitute vehicle for his company's business especially as he was shifting from one yard to another. One or two days prior to 31 October Williams telephoned the applicant and asked him to hire a vehicle. Williams told the applicant "We are going to go down and swap some gear over from one truck to another truck" and that that was how he was going to get paid for the BMW. They would sell some gear. The applicant agreed. He admitted in evidence that he realised that they were going to obtain stolen goods. The applicant said that he just wanted the money for his car and did not think the matter through. 8. The applicant said that after he hired the truck on 30 October 2000 he handed it and the keys over to Williams. This was on the understanding that the truck would be returned to the applicant for his business the following morning The following morning, 31 October 2000, Williams telephoned the applicant and told him to meet Williams at the yard (the new yard of the business of the applicant's company). The applicant needed the truck for use in the company's business that day. 9. The applicant was surprised at the extent of the property unloaded from the hired pantechnicon at the new yard. A group of men did the unloading. He assisted and was given a camera by Anthony Miers. The property unloaded was placed in a container owned by either the landlord or the previous tenant of the yard. The container was locked, Williams retaining the keys. 10. The applicant proceeded with the company's business, that is, making deliveries and changing yards. The following day when the applicant arrived at the new yard he found that the other offenders had fully loaded three or four cars with goods from the container. The cars left the yard. 11. On the following Saturday Williams loaded some of the stolen goods onto a pallet which was placed in the applicant's separate container. The applicant sold goods to Tony Tilsley and some other people. 12. The judge found that the applicant was somewhat overawed by Williams and agreed to do what he did partly because he felt intimidated. The judge felt that the applicant did not wholeheartedly embrace the criminal enterprise but was grudgingly drawn into it and would have preferred not to have been involved. However, the applicant, once drawn into the scheme, gave encouragement by making the vehicle available when he knew something was afoot. He acquiesced in having the stolen property warehoused, that is, hidden at his new yard. He knew people who would be interested in acquiring the stolen goods. He was instrumental in agreeing to sell a number of items and keeping a small amount for himself. 13. The judge said: "...his contribution to the conspiracy was brought about by him being placed in difficult circumstances. He should have had the strength to have turned Mr Williams down, but he did not." 14. The judge held that it was the applicant's active participation in distributing the stolen property which, when coupled with the other features of his involvement, required a full time custodial sentence. 15. The judge recorded that the applicant lied when he was questioned by the police at the beginning but he came round to telling the truth, or, at least a large part of it. 16. The judge correctly described the pre-sentence report as very favourable and the testimonials as to the applicant's good character as very impressive. 17. The applicant had one very minor matter on his record. No conviction was recorded. The judge rightly regarded the applicant as a man of good character. The applicant expressed remorse and contrition. 18. A psychologist prepared a detailed report. After administering various tests and making an assessment, he reported that the applicant has a below average IQ, is mildly learning disabled and possibly acts impulsively. He has the reading age of nine years five months (Grade 4 level). In his evidence the applicant said that he is at his best when doing things with his hands. His lack of analytical and reasoning ability and his desire to please and be accepted probably led, in part, to his not resisting Williams. This arose out of a history of pleasing people to avoid being treated "as a wog". The judge said: "...although he seems to have been an extremely hardworking man and devoted father and stepfather and a very hard worker, he was not in any academic sense terribly bright but he, through sheer hard work, has built up a life for himself. It is difficult to see just how much of his difficulty arose from the partial estrangement of his parents...that he should marry a person of Greek origin." 19. The judge dealt at some length with the pressures which the applicant's parents had placed upon him, including breaking up his first relationship and openly disapproving of his wife. They placed great stress on that marriage. That upset both the applicant and his wife. The judge said: "A lot of this man's trouble and sadness apparently has arisen as a result of this misunderstanding by his parents." 20. That misunderstanding involved placing pressure on the applicant to follow Greek ways (including marrying a Greek lady) and not to integrate with the existing population. The applicant's wife was a New Zealand lady. She too has been affected by the conduct of his parents. 21. The applicant has two children. He has worked very hard to provide for his family. They have two boys. The younger son has an extremely rare form of leukaemia. This condition greatly reduces his resistance to infection. He has had to endure countless medical procedures. One of the reasons they live in a semi-rural setting is for the health of the son. Every time he gets sick or affected in his health the son has to be taken straight to hospital. There have been numerous attendances by the applicant on behalf of and with his son. The son has needed much support. The financial burden of the hospital and medical costs has been heavy. The applicant has borne this burden. 22. The son's health has been extremely poor. He has been described as frail. At least four times the applicant and his wife have lived in fear that their younger son would not survive. The prognosis for the child and his prospects of longevity are difficult to define. The judge said of the applicant: "He is a person who has worked very hard to provide for his family. His wife also has submitted a statement setting out her considerable love for her husband for his generosity, his love of family, his devotion to the children and the support that he has provided during the very difficult times that they have gone through together. If this was a less serious offence I perhaps might have been able to avoid a long custodial sentence but I regret to say that my duty compels me to the view that a custodial sentence must be imposed." 23. The judge also accepted that the applicant would have much difficulty in serving a period of imprisonment. That included the possible loss of the business he had worked so hard to build up and difficulties in retaining the family home. The loss of the family business would, of course, affect the applicant's ability to meet additional expenses arising out of his son's care. The judge concluded: "...one should start off at a sentence of two years, but that should be reduced by his plea to one of sixteen months - his plea and the other subjective matters, including his domestic situation and the situation of his child". 24. The judge found special circumstances in the applicant's prior good character, pressing family obligations and the need for counselling and supervision for at least seven months. 25. Appeal ground 1 reads: "The sentencing judge erred in taking into account the applicant's role in disposing of some of the stolen property." 26. In support of that argument the applicant's counsel submitted that the disposition of the property was not one of the overt acts relating to the conspiracy or its implementation. It was a separate matter and the applicant's participation in the distribution arose after the stealing was complete and was the subject of a separate arrangement. 27. While there is no doubt that the disposal took place, the applicant pointed out that he cannot be sentenced for an offence of which he has not been convicted. 28. The Crown contends that it was legitimate for the judge to have regard to the scope of the activities undertaken. The applicant's participation in the disposal showed that he was very committed to the purpose of the conspiracy and so committed that he was prepared to assist in disposing of the goods. In short, he wanted to get his money. 29. The Crown submitted that the disposal by the applicant when he realised what was obviously taking place showed his fervour in participating in the conspiracy to steal. 30. I regard this point as being finely balanced but on the whole I have come to the conclusion, particularly having regard to the applicant's anxiety and determination to obtain his money, that it was legitimate, when considering the applicant's commitment to and participation in the conspiracy, to take into account his subsequent actions. Accordingly, in substance I do not think that the judge made any error of consequence. It would have been preferable for him to have put the matter in this way rather than the way in which he chose. 31. Appeal ground 2 reads: "The sentencing judge erred in failing to discount the applicant's sentence as a result of the applicant's assistance to the authorities." 32. The Crown does not dispute the applicant was entitled to some discount by reason of his "undertaking" to give evidence against co-offenders and the information he provided to police concerning the offender Tilsley. The Crown submitted that although the judge did not specifically advert to such assistance when dealing with the applicant, the judge may be taken to have had it in mind when referring to the other subjective matters, including the applicant's domestic situation and the situation of the child. I do not agree. The judge specifically referred to assistance to the authorities when dealing with Williams and Miers and giving them respectively a discount of one-third and thirty per cent. While they too pleaded guilty, their subjective features did not approach in cogency those of the applicant. Further, as the facts made plain and the judge recognised, the applicant's moral culpability did not approach that of Williams and Miers. 33. The Crown accepted that Detective Campbell had given evidence of the assistance given by the applicant. Tilsley was named in the applicant's record of interview. That led to Tilsley being arrested, charged and convicted of the crime of receiving property obtained by a crime. The applicant also undertook to give further assistance but to date this offer has not been availed of by the Crown. The judge could not reasonably have confined himself to a discount of one-third if he had combined the applicant's early plea of guilty, his remorse and contrition, the compelling subjective features of the applicant, earlier recounted, and his assistance to the authorities. A discount for assistance often incorporates the plea of guilty. 34. In view of the discounts already granted embracing the early plea of guilty, his remorse and contrition and his compelling subjective features a discount for assistance should have been granted. In my opinion the total discount that should have been granted is one totalling forty-five per cent. That would result in a sentence of the order of thirteen months. 35. I agree that there are special circumstances. These include the absence of prior convictions, pressing family obligations of an extraordinary kind and the need for counselling and supervision. Seven months is, in all the circumstances, an appropriate period for that to occur. 36. This means that I would come to the conclusion that the non-parole period should be one of six months. 37. I have not overlooked that during argument counsel for the applicant challenged the sentence imposed on the basis that it lacked parity or due proportion with that imposed on the offender Rangihaeata. That had much substance but even if that challenge were upheld lesser sentences than those to be proposed would be incorrect. 38. I propose the following orders: (1) Leave to appeal granted. (2) Appeal allowed. (3) Sentence quashed. (4) In lieu of the sentence imposed, the applicant is sentenced to imprisonment for a period of thirteen months commencing on 24 January 2002 and expiring on 23 February 2003 with a non-parole period of six months commencing on 24 January 2002 and expiring on 23 July 2002. The applicant is to be released on parole on 23 July 2002. 39 DOWD J: I agree with the proposed orders and his Honour's reasons. Therefore, the orders will be as proposed by Smart AJ. **********