R v Strbik [2002] NSWCCA 101

New South Wales Court of Criminal Appeal

CITATION : R v Strbik [2002] NSWCCA 101 FILE NUMBER(S) : CCA 60796/01; 60771/01 HEARING DATE(S) : 26 March 2002 JUDGMENT DATE : 26 March 2002

PARTIES : Regina v Joseph Strbik JUDGMENT OF : Studdert J at 1; Smart AJ at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/1119 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : L.M.B. Lamprati (Crown) R. Toner SC (Applicant) SOLICITORS : S.E. O'Connor (Crown) Macedone Christie Willis (Applicant)

LEGISLATION CITED : Crimes Act Crimes (Sentencing Procedure) Act CASES CITED: Cameron v The Queen [2002] HCA 6 R v Thomson & Houlton 49 NSWLR 383 DECISION : Leave to appeal granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60796/01

STUDDERT J SMART A-J

Tuesday 26 March 2002 REGINA v JOSEPH STRBIK Judgment 1 STUDDERT J: On 11 October 2001 the applicant Joseph Strbik pleaded guilty before his Honour Judge Gibson of Queens Counsel to twelve counts in an indictment then presented. Eleven of those counts charged him with offences of receiving stolen motor vehicles and the twelfth count charged an offence of attempting to steal a motor vehicle. The receiving offences were in a category of offence for which s 188 of the Crimes Act provides a maximum penalty of imprisonment for ten years. By virtue of the operation of s 154AA and s 344A of the Crimes Act the offence of attempting to steal a motor vehicle also was in a category of offence for which the legislature has provided a maximum penalty of ten years imprisonment. 2 The sentencing judge was asked to take into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, thirteen offences of receiving and five offences of goods in custody. 3 For the offence charged in the eleventh count of the indictment, one of the receiving offences, his Honour imposed a sentence of seven years two months commencing on the date of sentence, namely, 26 October 2001. His Honour fixed a non parole period for that offence of five years four months so that the non parole period will expire on 25 February 2007. In imposing that sentence, his Honour took into account the eighteen scheduled offences. 4 Then, in relation to counts 4 and 8, relating to the earliest of the receiving offences committed in December 1998, his Honour imposed a fixed term of imprisonment of twelve months for each offence to commence on 26 October 2001. On counts 1, 3, 5, 6, 9, 10 and 12, counts for offences committed in the year 1999, the judge imposed fixed terms of imprisonment of three years for each offence, again with the terms to commence on 26 October 2001. The remaining counts, 2 and 7, related to offences committed in the year 2000 and for those matters the judge imposed fixed terms of imprisonment of three years six months for each count, commencing 26 October 2001. 5 The applicant seeks leave to appeal against the severity of the sentences imposed. 6 His Honour found that the applicant was one of the leading figures in a car rebirthing group who appeared to specialise in high performance cars, mainly Holdens. The applicant's role was as mechanic in the criminal enterprise. The method of operation was that vehicles were stolen and the identification was then changed by substituting compliance plates from wrecked vehicles. Engine numbers were ground off and replaced, chassis numbers were changed and other cars were stolen to make use of expensive fittings, upholstery, leather seats and mag wheels and the like. The fittings and accessories would be transferred to the rebirthed vehicles which would then be either sold or held in dummy names for future disposal. As his Honour remarked, having given this description of the operation, this was an all too familiar story. 7 The offences were committed over a time span of some fifteen months. The earliest of the offences was in December 1998 and the most recent of them was in March 2000. The scheduled offences were all committed in the year 2000 but for two receiving offences committed in October 1999. 8 The value of all the property to which the offences related was approximately $1.26 million and his Honour remarked some of the victims recovered on insurance policies but many of them remained out of pocket at the time the applicant was sentenced. Objectively the totality of the applicant's criminality must be regarded as grave. 9 The Crown submitted that the criminal activity of car rebirthing has to be recognised as a social scourge and for my part I accept that as being an appropriate description. 10 The applicant gave evidence before the District Court where he was represented by Mr. Toner of Senior Counsel. The applicant gave no statement to the police and the transcript discloses that he participated in no interview with the police either. Indeed, no oral evidence was given on his behalf before Judge Gibson but there was tendered a psychologist report from a Ms. Graspis. That the applicant gave no evidence and had given no statement to the police is not a matter of course for which he is to be criticised but it has to be acknowledged that the judge had before him limited material on which to make an assessment of the subjective features of the case. Apart from the report from Ms. Graspis the judge had before him a presentence report dated 11 October 2001, and those two documents provided such meagre material as there was to permit of an assessment of the subjective circumstances. The judge took into account the applicant's pleas when the matter was originally before the Local Court under the terms of s 51A; there was some procedural defect but the judge remarked that he took into account the early pleas proffered by the applicant. 11 The applicant was born on 18 November 1974 and the judge gleaned from the presentence report and the psychologist's report that the applicant had had a normal, although strict, upbringing and that he left school after obtaining his school certificate. He attended TAFE and acquired his certificate in motor mechanics. The judge noted he was regarded as a good worker by his family. The judge took into account that the applicant had never been before a court charged with an indictable offence. Indeed, such matters as had been brought before the courts before had been dealt with in the Local Court and the applicant had been punished either by being sentenced to the rising of the court or by fines. 12 There was nothing in the applicant's presentence antecedents which was to be regarded adversely in the judge's sentencing task. 13 Before this Court it has been submitted that the sentences imposed were manifestly excessive and that the judge ought to have found special circumstances. 14 Mr. Toner submitted that there was error in the discount allowed for the pleas, and that too little was given by way of discount. 15 Recently in Cameron v The Queen [2002] HCA 6, Gaudron, Gummow and Callinan JJ considered it to be discriminatory for a person who pleaded guilty to receive a lesser sentence than a person who pleads not guilty simply because the plea saved the community the expense of a trial. However their Honours held "Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing." 16 The complaint here made is that the applicant's willingness to facilitate the course of justice manifested in the plea of guilty was not sufficiently reflected in the sentences here imposed, particularly when the judge accepted that the pleas showed some measure of contrition on the part of the applicant. His Honour did, however, observe that it was a strong Crown case. In the course of arguments, the judge recognised the need for some discount and did refer to a twenty-five percent discount by reference to R v Thomson & Houlton 49 NSWLR 383. However, having heard submissions in the matter on 11 October the judge reserved his decision and clearly changed his mind because when he came to sentence the applicant the allowance made was an allowance of twenty percent. The change does not of itself manifest error and there was no reason to regard what happened as being a slip. It seems to me that the twenty percent provided for was a permissible discretionary provision for what the judge was intending to address in allowing that discount. 17 Criticism has been directed at the sentence imposed on count 11, however, and the scheduled offences. It has been pointed out that a pre discount sentence of nine years is not far below the maximum and it has been submitted that it is difficult to reconcile the sentence on that count with the other lesser sentences. In effect it is put that the gap is indicative of inconsistency and of error and that which was imposed by way of sentence on count 11 was excessive. 18 I do not consider that that criticism is well founded. Count 11 related to an offence committed in March 2000, committed late in the applicant's criminal activity. Relevantly, it concerned a vehicle with a value of $90,000. Moreover, the judge was taking into account in imposing that sentence the thirteen offences of receiving and the five offences of goods in custody that were on the schedule. 19 Those scheduled offences were of themselves serious and involved property with an aggregate value in the vicinity of $700,000. 20 It seems to me that no error is demonstrated in these circumstances either by reason of comparing the penalty on the eleventh count with those imposed on the other counts or otherwise in relation to the penalty imposed, having regard to the applicant's overall criminality. 21 It has to be borne in mind further that the other counts were all for fixed terms because it would have been pointless, as his Honour appreciated, to impose non parole terms where to provide a period of parole would have been subsumed having regard to the non parole period for the eleventh count. Notwithstanding that it was proper for the sentences as structured to reflect provision for the applicant's contrition and his willingness to facilitate the course of justice, I am not persuaded that these sentences manifest error when one has regard to the extent of the applicant's criminality. 22 Mr. Toner submitted that the judge should have found special circumstances having regard to the applicant's age, his apparent want of social skills and the need that would exist for a longer than usual period of supervision in the interests of the applicant's rehabilitation when eventually he is released to parole. 23 Mr. Toner referred in particular to two features emerging from the documentary evidence that the judge had: