New South Wales Court of Criminal Appeal CITATION : Regina v Strbik [2004] NSWCCA 212 HEARING DATE(S) : 11/06/2004 JUDGMENT DATE : 8 July 2004 JUDGMENT OF : Dowd J at 1; Hislop J at 2; Smart AJ at 20 DECISION : (1) Leave to appeal against sentences granted; (2) Dismiss the appeals against sentence on counts 1, 2, 3 (taking into account Form One) 4, 8, 9 and 10; (3) Appeals against the sentences on counts 5, 6 and 7 allowed and those sentences quashed. In lieu thereof sentence the applicant on each of those counts to a fixed term of imprisonment for 3 years to commence on 8 July 2004 and expire on 7 July 2007; (4) Appeals against the sentences on counts 11, 12, 13, 14 and 15 allowed and those sentences quashed. In lieu thereof sentence the applicant on each of those counts to a fixed term of imprisonment for 2 years to commence on 8 July 2005 and expire on 7 July 2007 on which date the applicant becomes eligible for release to parole; (5) The conditions for release to parole should provide for the supervision of the applicant by the Probation and Parole Service and require the applicant to comply with all reasonable directions of that service as to drug rehabilitation. CATCHWORDS : Criminal law - Sentencing - Car rebirthing - Severity of sentence - Totality - Reduction of non parole period. LEGISLATION CITED : Crimes Act 1900 - ss 154AA(1), 188, 189A(1), 322(a), 344A(1), 562AB Crimes (Sentencing Procedure) Act 1999 - s 33 CASES CITED : Wong v R (2001) 207 CLR 584 PARTIES : Regina Peter Strbik FILE NUMBER(S) : CCA 60080/04 COUNSEL : Mr G Rowling - Crown Ms S Kluss - Applicant SOLICITORS : S Kavanagh - Director of Public Prosecutions (NSW) Ross Hill & Associates LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1170 FILE NUMBER(S) : LOWER COURT Backhouse DCJ JUDICIAL OFFICER : - 1 - IN THE COURT OF CRIMINAL APPEAL 60080/04 DOWD J HISLOP J SMART AJ 8 July 2004 REGINA v PETER STRBIK Judgment 1 DOWD J: I have read the judgment of Hislop J in draft form. I agree with the proposed orders and his Honour's reasons. 2 HISLOP J: On 30 May 2003 the applicant pleaded guilty to 15 counts in an indictment dated 27 May 2003. Counts 1, 3, 5, 6, 7, 8, 10, 14 and 15 charged the applicant with offences of steal motor vehicle (Crimes Act 1900 s 154AA(1)), counts 2, 4, 9 and 11 with disposing of stolen property (Crimes Act 1900 s 188), count 12 with attempt steal motor vehicle (Crimes Act 1900 ss 154AA(1) and 344A(1)) and count 13 with possession of property stolen outside the State of New South Wales (Crimes Act 1900 s 189A(1)). The maximum penalty for each of those offences, at the relevant time, was imprisonment for 10 years. The applicant was sentenced by Backhouse DCJ on 8 August 2003 in respect of those offences. 3 When sentencing the applicant as to count 3 her Honour took into account, pursuant to the Crimes (Sentencing Procedure) Act 1999 s 33, 9 additional offences, comprising 3 offences of receiving (Crimes Act 1900 s 188), 3 offences of disposing of stolen property (Crimes Act 1900 s 188), 1 offence of stealing a motor vehicle (Crimes Act 1900 s 154AA(1)), 1 offence of threatening a witness (Crimes Act 1900 s 322(a)) and 1 offence of intimidation (Crimes Act 1900 s 562AB). 4 The sentences ultimately imposed by her Honour were as follows: a) as to count 3, the applicant was sentenced to imprisonment for 4 years 6 months with a non-parole period of 2 years and 10 months. Her Honour directed the sentence commence on 9 March 2002. Accordingly the head sentence will expire on 8 September 2006, and the non-parole period on 8 January 2005. Her Honour took into account in this sentence the offences referred to in paragraph 2 above. b) as to count 8, the applicant was sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 3 months. Her Honour directed the sentence commence on 8 January 2005. Accordingly the head sentence will expire on 7 October 2008 and the non-parole period on 7 April 2007. c) as to counts 11-15, the applicant was sentenced on each count to imprisonment for a fixed term of 2 years. Her Honour directed these sentences commence on 8 March 2006. The sentences will expire on 7 March 2008. d) as to the remaining counts, her Honour imposed the following sentences: for each of counts 1, 2 and 4, a fixed term of imprisonment for 2 years to commence on 9 March 2002; for each of counts 5, 6 and 7, a fixed term of imprisonment for 3 years to commence on 8 March 2005; for count 9, a fixed term of two years to commence on 8 January 2005; for count 10, imprisonment for 3 years and 9 months with a non-parole period of 2 years and 3 months, to commence on 8 January 2005. 5 The net effect of her Honour's sentences was that the applicant should serve a minimum term of 6 years imprisonment and a maximum term of six years, six months and twenty nine days. 6 The applicant seeks leave to appeal against the sentences imposed. The grounds of appeal relied upon in the applicant's written submissions are, "1. The sentence was excessive. 2. Her Honour failed to give effect to the applicant's subjective circumstances. 3. Her Honour failed to find, or give effect to, her Honour's finding of special circumstances." 7 The offences arose out of the applicant's involvement as a member of a car re-birthing group. The group's method of operation was that vehicles were stolen, the identification changed by substituting compliance plates from wrecked vehicles, engine numbers were ground off and replaced, and chassis numbers changed. Fittings and accessories taken from other vehicles were attached and the re-birthed vehicles sold. 8 The offences with which the applicant was charged and those which were dealt with under the Crimes (Sentencing Procedure) Act 1999 s 33 occurred during the period 18 May 1999 to 23 March 2000. Ground One 9 The applicant submitted the total sentence of six years, six months and twenty nine days was excessive. Reference was made in written submissions to sentences imposed in other cases to support that submission. The sentencing Judge took a strong and justified view of the criminality of the offences and the applicant's involvement therein. She found such offences were properly described as a scourge on society, that the losses occasioned by such activities impacted upon society generally and the applicant was a principal in relation to four of the five steps involved in the re-birthing of vehicles. 10 As the High Court observed in Wong v R (2001) 207 CLR 584 at [58] when referring to cases where no specific error of principle was identified: …appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. 11 The sentences imposed by the sentencing Judge were appropriate having regard to the level of criminality involved. They were not, when compared with sentences in the other cases referred to in the written submissions, such as to result in the conclusion there was any misapplication of principle by her Honour or that the total sentence of 6 years 6 months and 29 days was manifestly excessive. 12 I would dismiss this ground of appeal. Grounds Two and Three 13 The applicant is a young man born on 4 April 1979. Although he had prior convictions he had not previously been imprisoned. Her Honour observed in her judgment that this was a special circumstance. 14 There was also before her Honour on sentence a report from the respected psychiatrist Dr Westmore which indicated the applicant came from a stable family background, did not suffer any antisocial personality disorder, but was using drugs which use was escalating resulting in financial pressure which was probably a relevant factor in the aetiology of the offending behaviour. Dr Westmore concluded the applicant appeared to have reasonably good insight into some of his difficulties and has applied for and been accepted into a drug rehabilitation programme. Dr Westmore believed the applicant's longer term prognosis was reasonably good if he could remain free of illicit drugs and if he could extradite himself from the dysfunctional social network which he had become involved in at the time that the offences occurred. 15 Her Honour in sentencing the applicant as to each of counts 3, 8 and 10 reduced the non-parole period by six months in addition to the usual 25% indicating that her Honour had given considerable weight to the subjective factors and special circumstances of the applicant. 16 Her Honour, as was appropriate, fixed sentences for each of the offences on the indictment. She then proceeded to accumulate the sentences. It was appropriate then for her Honour to apply the totality principle to review the aggregate sentence and consider whether the aggregate was just and appropriate. In my opinion her Honour erred at this stage of the sentencing process. The head sentence proposed by her Honour totalled six years, six months, twenty nine days and the non-parole period and fixed term period six years. This allowed for a period on parole of six months, and twenty nine days which was markedly too short a period to allow for supervision on release on parole and attending to drug rehabilitation after a long period in gaol. Whilst the applicant has the strong prospect of substantial family support more will be needed. 17 The disproportion between the head sentence and the parole period was also inconsistent with the parole periods ordered by her Honour in respect of counts 3 (20 months), 8 (18 months) and 10 (18 months). The principle of totality was not adequately considered and implemented in respect of the parole period. 18 In my opinion a minimum period of fifteen months on parole is required. The length of all sentences should remain unchanged but there should be a greater degree of concurrency to allow for the longer period on parole of fifteen months. A non-parole period of less than five years, three months, twenty nine days cannot be countenanced given the gravity of the criminality overall. 19 I propose the following orders: (1) Leave to appeal against sentences granted. (2) Dismiss the appeals against sentence on counts 1, 2, 3 (taking into account Form One) 4, 8, 9 and 10. (3) Appeals against the sentences on counts 5, 6 and 7 allowed and those sentences quashed. In lieu thereof sentence the applicant on each of those counts to a fixed term of imprisonment for 3 years to commence on 8 July 2004 and expire on 7 July 2007. (4) Appeals against the sentences on counts 11, 12, 13, 14 and 15 allowed and those sentences quashed. In lieu thereof sentence the applicant on each of those counts to a fixed term of imprisonment for 2 years to commence on 8 July 2005 and expire on 7 July 2007 on which date the applicant becomes eligible for release to parole. (5) The conditions for release to parole should provide for the supervision of the applicant by the Probation and Parole Service and require the applicant to comply with all reasonable directions of that service as to drug rehabilitation. 20 SMART AJ: I agree with Hislop J. ********** Last Modified: 07/08/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.