New South Wales Court of Criminal Appeal CITATION : R v WILLIAMS [2004] NSWCCA 18 HEARING DATE(S) : 9 February 2004 JUDGMENT DATE : 9 February 2004 JUDGMENT OF : Sully J at 28; James J at 29; Hulme J at 1 DECISION : Leave to appeal granted; Appeal dismissed PARTIES : Regina Appellant: Anthony Thomas Williams FILE NUMBER(S) : CCA 60008/04 COUNSEL : Crown: P Ingram Appellant: P Byrne SC SOLICITORS : Crown: S Kavanagh Appellant: D Williams LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0203 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER : - 7 - IN THE COURT OF CRIMINAL APPEAL 60008/04 SULLY J JAMES J HULME J Monday 9 February 2004 R v ANTHONY THOMAS WILLIAMS Judgment 1 HULME J: This applicant for leave to appeal against sentence was deal with by Karpin DCJ on 11 December last in respect of a number of offences of dishonesty. In summary they were:- First indictment 1. On 29 July 2001, with others, stealing from a motor vehicle goods including computer software, electrical goods, telephones, nutritional products, pyjamas and bed linen. 2. On 30 June 2001, with others disposing of the property referred to in the first count. 3. On 23 July 2001, with others, stealing 6 fax toner cartridges. 4. On 23 July 2001, with others, attempting to dispose of the property, the subject of count 3. 5. On 8 August 2001, with others, stealing a Canon printer and feeder, an Apple computer and ten printer toners. 6. On 8 August 2001 attempting to dispose of the property the subject of count 5. 7. On 9 August 2001, with others, stealing a computer docking station, a computer mouse, a computer power pack and a quantity of folders and documents. Second indictment 8. On 30 August 2001, with another offender, dishonestly obtaining 8 bottles of bourbon whiskey by deception by falsely pretending a credit card was a genuine and valid card and the co-offender the cardholder. 9. On 30 August 2001, by similar deception obtaining a computer printer and monitor. 10. On 30 August 2001, by a similar deception obtaining a television set. 2 In respect of the charges I have numbered 1 to 5 and 7, 9 and 10 the Appellant was sentenced to imprisonment for 12 months with a non-parole period of 8 months. In respect of the charge I have numbered 6, the Appellant was sentenced to imprisonment for 18 months with a non-parole period of 8 months. In respect of the charge I have numbered 8 he was placed on a good behaviour bond for 3 years. 3 The value of the property stolen was of the order of $18,000. The value of the property the subject of the charges against the applicant in a second indictment was of the order of $1200. 4 The period over which the offences in the first indictment occurred extended from 30 June 2001 to 9 August 2001. The offences subject of the charges in the second indictment and with which the applicant was concerned occurred on 30 August. 5 It is clear that, in effect, over a period of two months the applicant was involved in conscious deliberate criminality on a number of occasions for the reward that criminality would bring. 6 In support of the appeal Mr Byrne of senior counsel raised four principal issues. He submitted, firstly, that her Honour had erred in her assessment of the objective criminality of the applicant's conduct and drew attention particularly to two passages in the remarks on sentence. (I interpolate that the applicant was dealt with by her Honour together with a number of other offenders involved sometimes in the offences in which the applicant participated and sometimes in other offences.) 7 The first passage to which Mr Byrne took the Court was in terms: "It is conceded in relation to all the offences as indeed it must be that a number of people were deprived of their property and the offences involved substantial breach of trust. Courier drivers are hard working people who in the interests of making speedy deliveries often do not have time to lock their vehicles when they leave them. This makes them a soft target for people such as these offenders prepared to engaged in theft from vehicles." 8 The second passage relied on in this respect was in terms: "The prisoners exploited the trust and vulnerability of the courier drivers in many instances." 9 It was submitted on behalf of Mr Byrne that this was not a case where trust or breach of trust was involved. 10 The court's attention was drawn to the terms of s 21A of the Crimes (Sentencing Procedure) Act pars (k) and (l) of sub-s 2 of that section including as matters of aggravation which if appropriate the court should take into account that: "The offender abused a position of trust or authority in relation to the victim." And: "(l) The victim was vulnerable for example because the victim was very young or very old or had a disability or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant.)" 11 It was submitted, partly in reliance upon the context in which the second of the passages which I quoted occurred, that her Honour must have had in mind those paragraphs and circumstances of aggravation. 12 However the precise nature of the conduct which her Honour was being asked to judge was clearly in evidence before her in the course of sentencing proceedings which occurred over a number of days. Although I can accept that the words which I have quoted would perhaps have been better omitted. It is apparent from the totality of her Honour's remarks that she understood precisely the nature of the conduct for which she was being asked to impose sentences. When her Honour's remarks are considered in totality, I am satisfied that her Honour had no misleading understanding or impression of that conduct. 13 It was submitted, further, that her Honour erred in finding that there were substantial losses arising from the offences with which the applicant was concerned. I see no error in this choice of language. For the vast majority of people in the community an amount of $18,000 would be a substantial loss and the fact that numerous offences of dishonesty are committed involving thousands of dollars and perhaps tens of thousands of dollars does not seem to me to detract from the description that the losses caused by the applicant's conduct were substantial. 14 The second ground relied upon by Mr Byrne was that her Honour failed to give any reasons why a sentence of something other than full time imprisonment was appropriate in all the circumstances of the case. Attention was directed to s 5 of the Crimes (Sentencing Procedure) Act which in sub-s (1) behoves a court not to sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate. 15 For most of the charges for which the applicant was sentenced her Honour imposed a sentence of imprisonment. However, in respect of one offence she imposed a good behaviour bond for three years and in the case of other offenders sentenced at the same time her Honour imposed one or more bonds and suspended sentences. 16 In these circumstances it does not seem to me possible to say or to hold that her Honour was not fully conscious of all of the sentencing options which were open to her. Further options beyond those I have mentioned have been referred to in, for example, the pre-sentence report relating to the applicant which was before her Honour. It is true that her Honour did not, in the case of the applicant, indicate why she preferred the sentences which she did rather than a sentence of imprisonment, suspended or of a periodic nature, but in the circumstances of the case and in the light of all that her Honour said when dealing with all offenders I do not find this omission indicative of error. 17 The third point relied on by Mr Byrne was that her Honour failed to take into account, or alternatively failed to give appropriate weight to, the fact that more than two years had elapsed since the applicant's arrest in relation to the offences and that in that time nothing adverse had emerged against him. 18 I acknowledge that these events are entitled to some, although I do not think great weight. Her Honour clearly recognised that this passage of time was of significance, observing: "There has been a long period since the initial indication of the desire to plead guilty on the part of all of them." 19 Attention was also directed to a passage in the pre-sentence report relating to the applicant where it is said that he is aware of the seriousness of his situation and is most fearful of imprisonment. It was submitted that this fear having, one might infer, existed over probably all of the two years and three months or so between charging and sentence, was a matter which argued for leniency. I agree that it does though one must recognise that something of the order of one year between charge and sentence not uncommonly expires by reason of the delays which seem to be an integral part of the justice system. To some degree delay is probably avoidable. To some degree it is not. The police and other prosecuting authorities are entitled to time in which to fully consider the course of action they wish to pursue and properly prepare in that regard. Neither they nor the courts just sit by waiting for persons to turn up to be dealt with as soon as they are ready. But that said I accept that there was at least something in the order of a year or perhaps fifteen months unusual and, as I would see it, inappropriate delay in the bringing on of these charges. Nevertheless I am not persuaded that her Honour did not give this aspect of things adequate weight. 20 The fourth point relied upon by Mr Byrne was that her Honour failed to have adequate regard to the fact that the offences to which the applicant pleaded guilty could have been dealt with in the Local Court. 21 Her Honour certainly recognised that that could have accurred, saying: "It was submitted on behalf of the prisoners that these matters should have been dealt with in the Local court and that that should be taken into account when dealing with them. The principle that the sentencing court should have regard to the fact that matters could have been dealt with summarily and that the persons offered to plead guilty in the Local Court is clearly relevant. However, this is not a case in which any criticism can be levelled at the Director of Public Prosecutions for treating those matters as indictable." 22 For my part while I accept that it is relevant that the matters could have been dealt with in the Local Court I do not see in her Honour's observations any error. Furthermore, I do not regard the fact that they could have been so dealt with as a matter of any great importance or meriting more than her Honour said. The principal issue is what was the extent of the applicant's criminality and how should it have been dealt with. One would hope that it would have been dealt with appropriately in whichever court it came before. In fact, the sentences which her Honour imposed were sentences which the Local Court could have imposed and it is not apparent that the applicant has suffered in any way from the fact that the Director of Public Prosecutions sought to treat the matters as indictable. Furthermore, when one has regard to the totality of the criminality involved in the offences both of the applicant and of the other offenders it seems to me that it would not have been appropriate to deal with them in the Local Court. 23 The remaining issue is whether, even though there is no patent error in her Honour's remarks on sentence, it can be said that error is demonstrated by the terms of the sentences she imposed. The heaviest custodial sentence in terms of imprisonment was obviously that of imprisonment for eighteen months with a non-parole period of eight months. Another sentence was a good behaviour bond for three years. No complaint is made about the latter. 24 Very relevant in this connection is the applicant's subjective situation. He was aged forty-two at the time and had reached that age without having any convictions recorded against him. He would seem to have led a blameless life to that time and, among other things, would seem to have engaged in full time employment. It is unusual for someone with that record or absence of record to be sentenced to full time custody on the first occasion when he comes before a court for offences of larceny or disposing of stolen property or obtaining by deception the property which he obtained by that method. His record meant that serious consideration had and has to be given to the question of whether full time custody was appropriate or so far as this court is concerned whether it was not an option available to her Honour. This court does not sit simply to second guess sentencing Judges. Absent patent error in the sentencing process this Court is entitled to intervene only if it is of opinion that error is demonstrated by the sentence passed. 25 I have anxiously considered whether, because of the Applicant's record, the sentences which were imposed by her Honour were within the acceptable range of her Honour's discretion. Ultimately the conclusion to which I have arrived is that they were. The dominating feature in that regard so far as I am concerned is the fact that they were not an isolated event or perhaps small number of events committed over a reasonably short period or committed through some present need but were, as I have indicated at the outset, conscious, deliberate criminality over a moderately lengthy period. 26 It is not the law that Judges are compelled in the face of such criminality to impose sentences of less than full time custody or full time custody of lesser periods than the most severe sentence passed in this case. 27 The matter is one where, in my view, leave to appeal should be granted but the appeal should be dismissed. 28 SULLY J: I agree with the orders proposed and with the reasons given for the orders. 29 JAMES J: I also agree. ********** Last Modified: 02/18/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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