New South Wales Court of Criminal Appeal CITATION: MASON v R [2007] NSWCCA 32 HEARING DATE(S): 29 January 2007 JUDGMENT DATE: 16 February 2007 JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 21; Howie J at 22 DECISION: 1. Leave to appeal granted; 2. Dismiss the appeal CATCHWORDS: CRIMINAL LAW - Appeal against sentence - three charges of receiving stolen property - motor vehicle re-birthing enterprise - whether sentencing judge considered alternatives to full time custody - no express reference to periodic detention - whether periodic detention available LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Zamagias (2002) NSWCCA 17 PARTIES: Brand Mason (Appl) The Crown FILE NUMBER(S): CCA 2006/2574 COUNSEL: D Stewart (Appl) V Lydiard (Crown) SOLICITORS: Ross Hill & Associates (Appl) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/51/0201 LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 11 May 2006 IN THE COURT OF CRIMINAL APPEAL 2006/2574 McCLELLAN CJ at CL SIMPSON J HOWIE J FRIDAY 16 FEBRUARY 2007 MASON, Brand v R Judgment 1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against sentences imposed on him on 11 May 2006 in respect of three counts of receiving stolen property contrary to s 188 of the Crimes Act 1900. The offences each carried a maximum penalty of twelve years imprisonment. 2 The sentencing judge determined to impose a non-parole period of 16 months commencing 11 May 2006 and expiring on 10 September 2007 in relation to each offence. His Honour imposed an additional term of 14 months making the overall sentence in respect of each count one of 2½ years imprisonment to be served concurrently. When imposing the sentence his Honour indicated that but for the plea of guilty the applicant would have been sentenced to a total term of 3 years in relation to each count. His Honour also had regard to matters on a Form 1 relating to an offence of receiving stolen parts of a Holden motorcar. 3 At the sentencing hearing the judge received an agreed statement of facts which formed the basis for his Honour's findings. That statement disclosed that the applicant is a vehicle spray painter by trade and has extensive experience in the smash repair industry. He owns and occupies premises at Lot 20 Tindale Road, Eatonsville which consists of a dwelling and three large sheds. Two of the sheds were used primarily for the storage of motor vehicles and parts and the third shed was set up as a fully equipped mechanical workshop. 4 When the applicant's premises were searched by police they discovered motorcycles and motorcars. They were in various stages of the "re-birthing" process. That process, as I understand it, refers to an enterprise where vehicles which have been stolen are altered so as to disguise their true identity and provided with false identification numbers and other changes are made. Apart from the vehicles which were undergoing re-birthing, the police also discovered numerous other vehicle parts, stamping tools and welding and mechanical equipment. 5 When the premises were searched the applicant denied that he knew that the vehicles were stolen or that he had been involved in the re-birthing process of the vehicles. 6 Following the search, investigations continued. It was ultimately found that the vehicles referred to in each of the counts were stolen. Various alterations had been made to each of them to remove the original vehicle identification number and replace it with a false number. During the course of those investigations the applicant submitted documents to the police by which he attempted to establish that the chassis of one of the seized vehicles was that of a wrecked vehicle and had been fitted with an engine which he had bought independently. The applicant produced receipts in relation to the alleged purchase of the engine. However, forensic analysis ultimately demonstrated that this was an impossibility and that the vehicle which the police located had its original chassis and engine but with altered numbers. 7 With respect to count 3 which concerned a motorcycle, the agreed facts disclosed that the false identification number which had been stamped onto its frame was consistent with having been made by a stamp that was found on the applicant's property and which he confirmed belonged to him. The applicant originally responded to the police investigation with an apparently innocent account of how he came by the motorcycle. However, that explanation turned out to be a fabrication. 8 The sentencing judge described the offences as being "what is commonly described as a vehicle re-birthing case." His Honour then said: "Now s 188 I am sure can cover many situations and accordingly I make it clear that the material is all placed before me to show that this was an enterprise in which stolen vehicles were being given a new false identity to enable them to be sold and money gained in respect of that." 9 His Honour determined that the fact that the various items were received in the course of a re-birthing enterprise was an aggravating feature of the offence. His Honour further determined that the offences involved planning. His Honour was unable to determine who else may have been involved in the enterprise but was satisfied that the applicant was playing a significant role in the operation. His Honour was also satisfied that this was not a case of "one-off" there being three vehicles processed improperly, which his Honour determined affected the overall gravity of the offences. 10 There was little, if any, discussion of the relevant facts in submissions made at the sentencing hearing. The agreed statement of facts was tendered and the applicant did not give evidence. 11 The submissions of counsel for the applicant at the hearing were confined to emphasising the favourable elements of the applicant's personal circumstances. A submission was made that although a term of imprisonment may be appropriate this should be served by other than full time custody. The submission did not particularise whether this should be by a suspended sentence or periodic detention. 12 Although the applicant pleaded guilty this was not done at the first opportunity. Indeed, as I have indicated, the response of the applicant to the original police investigation was to provide untruthful accounts in an effort to avoid prosecution. His Honour found that the applicant was entitled to the benefit of the fact that he had never been convicted of any offence involving dishonesty and had regard to a number of references from persons emphasising how highly regarded the applicant was in the community. His Honour also had regard to the fact that although the offences were discovered in July 2003 there was a significant delay in his prosecution, which was in part due to the applicant's response to the police investigations. In that time the applicant fathered two children which his Honour found to be a significant incentive to the applicant to be of good behaviour in the future. His Honour also found that there were significant prospects of the offender being rehabilitated. His Honour also found that there were special circumstances in that the sentence which his Honour determined to impose would be the first sentence of imprisonment to be imposed upon the applicant. 13 When determining the appropriate sentence his Honour had regard to the fact that although there were three separate charges they were related, in that they each formed part of the re-birthing enterprise. His Honour concluded that "an overall sentence, concurrent on each count (would be) appropriate but that sentence has been arrived at on the basis that there were 3 vehicles not just one." His Honour went on to say: "Now I further say about these offences, the authorities make it clear they are seriously regarded by the community. They call for sentences of imprisonment and there is no reason that I can find in the material before me to depart from that overall requirement. I have been addressed on behalf of the offender on the basis that any sentence should be suspended. I must say that that, of necessity, depends on an assessment of the overall sentence as coming within sentences that can be suspended and also the alternative gives rise to whether or not, if it does not come within that range, whether or not there are special circumstances." The appeal 14 The only ground of appeal is that his Honour failed to properly consider alternatives to full time custody and, in particular, should have concluded that the sentence could be served by way of periodic detention. No complaint is made in relation to the term of the sentences imposed. 15 In my opinion, the sentencing judge correctly determined that the offences required a term of imprisonment. As that term was determined at more than two years it could not be suspended (see s 12 Crimes (Sentencing Procedure) Act 1999). However, as the term of imprisonment did not exceed three years, it would have been possible for his Honour to direct that the sentence be served by way of periodic detention (see s 6 Crimes (Sentencing Procedure) Act 1999). 16 His Honour's remarks on sentence do not reveal any consideration of periodic detention. This may be explained by the fact that counsel for the applicant did not submit that periodic detention may be appropriate. His Honour probably understood counsel's submission to be confined to a suggestion that a suspended sentence would be appropriate. 17 When sentencing an offender to a term of imprisonment the court is required to firstly determine the appropriate sentence. Once that has been determined it is necessary to consider whether there are any alternatives to full time imprisonment and whether that alternative should be utilised. In appropriate circumstances the alternatives include suspension of the sentence or periodic detention. These principles were considered by Howie J in R v Zamagias (2002) NSWCCA 17 [28]-[30]. 18 As Howie J explained a failure of a court to expressly state that it has followed a two step approach in arriving at sentence does not itself reveal error. However, it "may lead this Court to examine carefully the findings made by the sentencing judge to determine whether the sentence is erroneous." 19 Although his Honour did not refer to the possibility of periodic detention when sentencing the applicant I am not persuaded that the sentence which was imposed was erroneous. His Honour sentenced the applicant having regard to his findings that the offences were committed as part of an organised re-birthing operation of stolen motor vehicles. Regrettably this type of illegal enterprise is not uncommon. It inflicts considerable loss on those members of the community whose vehicles are stolen, as well as inflicting loss on any insurer who may have obligations to provide compensation. Being part of a deliberate and organised criminal enterprise, in my view a fulltime custodial sentence was appropriate. Although the applicant was entitled to consideration for his plea of guilty, his prior good character and favourable references, these matters did not displace the need for a sentence which provided both adequate punishment and effective deterrence of others. 20 Although I would grant leave to appeal, I would dismiss that appeal. 21 SIMPSON J: I agree with McClellan CJ at CL. 22 HOWIE J: I agree with McClellan CJ at CL. ********** 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.