New South Wales Court of Criminal Appeal CITATION: Regina v Palinko [2005] NSWCCA 46 HEARING DATE(S): 18/02/2005 JUDGMENT DATE: 1 March 2005 JUDGMENT OF: Bryson JA at 1; Barr J at 2; Hoeben J at 3 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW: s188 Crimes Act - receiving motor vehicle - objective seriousness - use of subjective features - concurrency and accumulation. Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 House v The King (1936) 55 CLR 499 Pearce v The Queen (1998) 194 CLR at 610 CASES CITED: R v Ellis (1986) 6 NSWLR 603 R v Thomson and Houlton (2000) 49 NSWLR 383 Jason John Palinko - Applicant PARTIES: Crown - Respondent FILE NUMBER(S): CCA 2004/2597 John P Punch - Applicant COUNSEL: D Arnott - Crown Ryan and Bosscher - Applicant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0069 LOWER COURT JUDICIAL OFFICER: Delaney DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2597 BRYSON JA BARR J HOEBEN J Tuesday, 1 March, 2005 REGINA v Jason John PALINKO JUDGMENT 1 BRYSON JA: I agree with Hoeben J. 2 BARR J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence On 29 March 2004 the applicant entered a plea of guilty at Parramatta Local Court in relation to two counts of receiving motor vehicles contrary to s188 of the Crimes Act 1900. The offences took place as to count 1, between 1 March 2003 (the date of theft) and 18 July 2003 (the date of recovery) and as to count 2, between 11 May 2003 (date of theft) and 18 July 2003 (the date of recovery). Each offence carried a maximum penalty of imprisonment for 12 years. 4 The applicant came before his Honour Delaney DCJ for sentence on 8 June 2004. The applicant adhered to his plea of guilty. His Honour sentenced the applicant as follows: (i) As to count 1, a fixed term of imprisonment for 18 months to commence on 8 June 2004 and expire on 7 December 2006. (ii) As to count 2, imprisonment for 3 years and 3 months with a non-parole period of 2 years, such non-parole period to commence on 8 December 2004 and expire on 7 December 2006. The parole period would commence on 8 December 2006 and expire on 7 March 2008. In effect the applicant was sentenced to a period of imprisonment for 3 years and 9 months with a non-parole of 2 years 6 months. Factual background 5 The applicant was born on 25 August 1978 and was in a de facto relationship with Tracey Lee-Ann Scott, but at the time of the offences they were living separately. The couple had a daughter born in July 2002. The applicant's brother-in-law was a Danny Touma. 6 On 2 December 2002 a Peugeot 406 coupe, which the applicant owned, was involved in a motor vehicle collision and was significantly damaged. The applicant's comprehensive insurer paid out the finance company and allowed the applicant to keep the damaged Peugeot 406 coupe. Despite this, the applicant was considerably out of pocket as a result of the accident. 7 Some time after 1 March 2003, the applicant visited Tracey Scott at her Greystanes residence. On that occasion he saw a red Peugeot 406 coupe in the driveway. Ms Scott gave the vehicle to him. He suspected that the vehicle was stolen but asked no questions. 8 In fact the red Peugeot 406 coupe had been stolen from the Asquith and Johnson car dealership on 1 March 2003 by Ms Scott. She stole the vehicle by means of subterfuge. There was no evidence that the applicant was aware of the means by which Ms Scott stole that vehicle. 9 The applicant took the stolen Peugeot to his residence in Punchbowl. He then swapped compliance plates, the chassis number, engine numbers and licence plates from his damaged Peugeot to the stolen Peugeot. This required some, but not particularly extensive, mechanical work. On 11 June 2003 the applicant took the "rebirthed" red Peugeot to the RTA office at Bankstown where he renewed its registration by reference to the licence plates from the damaged Peugeot. 10 On 7 May 2003 Mr Touma purchased an extensively damaged Audi motor vehicle. On 11 May 2003 Ms Scott attended the Audi Centre car dealership at Church Street, Parramatta and again, using a subterfuge, stole an Audi all road station sedan from that dealership. 11 The applicant first saw the stolen Audi on the weekend following its theft. It was in the backyard of the Greystanes premises of Ms Scott. He suspected that it was stolen but again did not seek any details from Ms Scott. The applicant said that he decided to dismantle it, as he knew his brother-in-law, Mr Touma, needed Audi spare parts. An arrangement was made with Mr Touma for the two Audi vehicles to be brought to the same location. 12 The applicant stripped the following items from the stolen Audi – the front end, the bonnet, guards, one headlight, a grille, bumper bar, a radiator support, a section of the front chassis about 30 centimetres long, the air conditioner condenser and the pulleys on the front of the motor. He also removed parts of the locking mechanism and the engine control unit. He sold those parts to Mr Touma for $2,000-$3,000. He got rid of the remaining parts of the stolen Audi by cutting them up and sending the metal to a recycling yard. 13 On 17 January 2004 the applicant was arrested whilst in the company of Ms Scott. He was interviewed and made full admissions as to the "rebirthing" of the stolen red Peugeot and also provided the investigating police with full information concerning his actions in relation to the stolen Audi. The applicant agreed that he had engaged in this activity for monetary gain. Remarks on sentence 14 Having reviewed the facts surrounding the offences, his Honour recorded the following subjective matters concerning the applicant. (i) The applicant had no information concerning how Ms Scott had acquired the Peugeot and Audi. (ii) He had been abusing cannabis at a heavy rate from the age of eighteen until December 2003. (iii) He had been educated to year 12 standard, leaving school in 1996. Thereafter he had been in reasonably steady employment. He was working as a machine operator at the date of sentence. (iv) He and Ms Scott had met in early 1997. Soon after they had commenced a relationship. Not long after the theft of the Audi they had resumed living together again. Prior to that they had been separated for six-eight months. Their daughter was aged nine months at the time of the first offence. (v) Apart from a previous conviction for entering prescribed premises without lawful excuse, for which he was fined $100, the applicant had a clear record. (v) The applicant had fully co-operated with the police following his arrest and had entered a plea of guilty at the first opportunity. 15 The applicant gave evidence in the sentencing proceedings. His Honour was not prepared to accept that part of the applicant's evidence where he said that he did not appreciate that what he was doing was wrong and that he was not thinking of the consequences of his actions. His Honour found to the criminal standard that the applicant knew precisely what he was doing and went ahead with it knowing that it was wrong to do so and that the two vehicles had been stolen. 16 Because the plea of guilty had been entered at the earliest reasonable time, and having regard to the remorse and contrition that such an early plea of guilty demonstrated, his Honour allowed in favour of the applicant a discount on sentence of twenty-five percent. 17 In relation to rehabilitation his Honour concluded that the Probation and Parole Service report indicated that the applicant had reasonable prospects of rehabilitation. The applicant would need to overcome his abuse of cannabis. His Honour did not regard that abuse as an excuse for the offences. He did, however, note the applicant's age and lack of any serious criminal record in assessing his rehabilitation prospects. 18 His Honour also analysed the objective seriousness of the offences. He noted that they were two in number and occurred within two months of each other. The penalty imposed by the legislature of 12 years for such offences indicated how seriously they were regarded. Because of the element of planning which went into the "rebirthing" of the Audi, and the fact that there were two offences committed close together, his Honour assessed the level of criminality as near the middle of the range. 19 Due to the seriousness of the offences, his Honour concluded that a custodial sentence was required. He had regard to s3A (purposes of sentencing) and s21A of the Crimes (Sentencing Procedure) Act when considering what periods of imprisonment were appropriate. In relation to aggravating factors, his Honour noted the value of the two cars (in excess of $100,000) and that two offences were involved. By way of mitigation his Honour had regard to the applicant's relatively good criminal record, his previous good character, his good prospects of rehabilitation and his early plea of guilty. 20 His Honour decided that the statutory ratio between the non-parole period and the parole period should be altered in the applicant's favour because of his age, the fact that this would be his first time in prison, that some accumulation was being provided for in his sentences and that he would need a period of supervision upon his release to assist in his rehabilitation. 21 His Honour also had regard to Pearce v The Queen (1998) 194 CLR 610 when he sought to balance the relative culpability of each offence with the requirement for totality in relation to the aggregate sentence. It was against that background that his Honour awarded the sentences referred to. Appeal Ground 1 – The aggregate sentence was too severe, having regard to the combined objective seriousness of the two offences 22 The submission in support of this ground depended upon an acceptance of the evidence of the applicant that he did not appreciate that what he was doing was wrong and that he was not thinking about the consequences of his actions. That evidence was not accepted by his Honour. 23 The submission fails to have regard to the detailed consideration, which his Honour gave to the objective seriousness of the offence. His Honour made specific reference to the work performed by the applicant in relation to the vehicles and the degree of planning which was involved, particularly in relation to the Audi. Error has not been demonstrated, either in his Honour's consideration of each individual offence or the totality of the sentences awarded. This ground of appeal fails. Ground 2 – The aggregate sentence was too severe, having regard to the subjective features 24 The submission in support of this ground replicated the subjective matters to which his Honour specifically referred in his remarks on sentence. The complaint by the applicant was that his Honour did not give sufficient weight to those subjective considerations. The weight to be given to subjective considerations was an essentially discretionary matter. Provided his Honour adequately considered those subjective matters (which he did) no error in his Honour's approach has been demonstrated. No error of the kind referred to in House v The King (1936) 55 CLR 499 has been identified. This ground of appeal fails. Ground 3 – The sentencing judge should not have found that "there is no other penalty appropriate, other than a sentence of fulltime imprisonment" 25 It was submitted that the applicant's admissions in relation to the second offence (the Audi) were made in circumstances where there was little evidence of his guilt. (R v Ellis (1986) 6 NSWLR 603 at 604). His Honour was in error in failing to have regard to this factor and in failing to increase the discount on sentence beyond twenty-five percent. 26 The principle in R v Ellis was fully considered in R v Thomson and Houlton (2000) 49 NSWLR 383 at para 138. It was in that context that Spigelman CJ said: "[140] Where the accused's own disclosure or confession is the basis of the strong Crown case, this should be taken into account with respect to the utilitarian benefit. Indeed, such conduct should be regarded as the earliest timing for a plea." This extract confirms that such considerations were to be included in the utilitarian value of an early plea of guilty, for which the appropriate discount on sentence should be ten – twenty five percent. 27 In this case his Honour allowed the full twenty-five percent discount on sentence, which adequately took into account the help provided by the applicant by his early plea of guilty in establishing the Crown case in relation to the Audi offence. 28 This point was not taken before his Honour. Even if error was disclosed (which it was not) leave would be required pursuant to rule 4 of the Criminal Appeal Rules. No basis has been provided for the granting of leave. This ground of appeal fails. Ground 4 – The sentences in respect of the two counts of receiving should have been concurrent 29 It was submitted that because the two offences were closely connected in time, and there had been no repetition of the criminality after these two offences, the sentences should have been concurrent. 30 Although closely connected in time, the two offences involved different circumstances and victims. The first offence could perhaps be explained on the basis of the applicant's financial need created by the damage to his Peugeot. No such explanation is available for the offence involving the Audi. This, as the applicant conceded, was carried out purely for monetary gain. It also involved more planning and organisation than the first offence. 31 It cannot be said that the applicant had voluntarily ceased further criminality by the time he was arrested in January 2004. Ms Scott had been arrested in July 2003. Thereafter it was well known to the applicant that investigations were taking place into her activities in relation to the Peugeot and the Audi. A strong inference was available that it was her arrest, and not remorse for the offences, which led to there being no further offences after July 2003. 32 Given the somewhat greater level of planning and organisation associated with the Audi offence (being the second in point of time) his Honour was entitled in point of principle to partially accumulate the two sentences. No error has been demonstrated in that approach. This ground of appeal fails. Conclusion 33 The orders which I propose are: (i) Leave to appeal granted. (ii) Appeal dismissed. ********** 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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