R v Haddad[2001] QCA 171

COURT OF APPEAL

McMURDO P

McPHERSON JA

CHESTERMAN J

BRISBANE

DATE 04/05/2001

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty to two counts of receiving commercial quantities of stolen cigarettes in the District Court at Maroochydore on 26 October 2000.  He was sentenced on each count to five years' imprisonment to be suspended after serving a period of 15 months' imprisonment with an operational period of five years.

The applicant claims the sentence imposed was manifestly excessive and does not sufficiently distinguish between the sentence imposed on the co-accused, Clark, after taking into account the applicant's cooperation with the authorities.  The applicant claims the appropriate sentence was one of four years' imprisonment suspended after nine or perhaps 12 months with an operational period of five years.

The applicant was the manager of a local nightclub where he met Clark, who was the ringleader of an organised crime gang involved with the theft of cigarettes from retail premises throughout the Sunshine Coast area.  A group of young men stole the cigarettes at Clark's behest through breaking and entering and passed them on to Clark.  Clark on-sold the cigarettes to the applicant.  The offences spanned the period from June 1996 to December 1998. 

The applicant was sentenced on the basis that he paid at least $40,000 for the cigarettes at $2 per pack and received approximately $100,000 worth of cigarettes during the period.

The applicant was 30 years old at the time of sentencing and 26 to 28 at the time the offences were committed.  His only prior convictions were for minor drug matters in the Magistrates Court in 1994.

The applicant was apprehended after police had established a body of evidence against him.  Later that day he made full and frank admissions about his involvement in the offences with Clark and later that day provided a statement implicating Clark.  The applicant gave evidence at Clark's committal.  He was the subject of news reports and was branded a "dog".  He was fearful of the consequences of this whilst serving a prison sentence.  The applicant was not required to give evidence at Clark's trial because Clark had pleaded guilty on the basis of his own admissions prior to the applicant's sentence.  Section 13A Penalties and Sentences Act 1992 therefore had no operation in this case.

The applicant's frank admissions meant that the receiving counts to which he pleaded guilty spanned a longer period than that to which Clark pleaded guilty. 

We are told that the applicant whilst serving his prison sentence is unable to take place in a WORC program whilst in custody because Clark is already involved in that program and he is fearful for his own safety.

The applicant's partner had a drug habit and he used the money from the offences to assist her.  The applicant has suffered threats in the community since giving evidence against Clark at committal. 

Clark pleaded guilty to 37 counts comprising 26 counts of breaking and entering business premises, one count of receiving, two counts of unlawful use of a motor vehicle with a circumstance of aggravation, two counts of unlawful use of a motor vehicle, two counts of unlawful possession of a motor vehicle with a circumstance of aggravation, one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, one count of stealing property with a circumstance of aggravation and one count of fraud.

The offences of a disparate nature to these offences were also serious.  Twenty-seven of the offences to which Clark pleaded guilty carry the maximum penalty of life imprisonment compared to the maximum penalty of 14 years to which this applicant was liable.

Clark was 23 years of age and pleaded guilty, although, as has been mentioned, not at an early stage.  He had prior convictions for unlawful use of a motor vehicle.  Clark also re-offended whilst on bail.  Significantly, Clark was the initiator of the scheme and used others, including juveniles, to commit the break and enters for him.

It is useful to examine briefly two comparable sentences.  In R v. Highlands C.A. No 79 of 1992, 27 July 1992, Highlands pleaded guilty to a number of less serious counts and also to 26 counts of receiving for which he was sentenced to imprisonment for 10 years cumulative upon an 18 month sentence imposed on the other offences.  This made an effective sentence of 11 years and six months for the receiving charges.

The property received was valued at about $40,000.  The applicant did not have a very significant criminal history and had not been sentenced to imprisonment.  He made full admissions to police and pleaded guilty.

After referring to the cases of Carroll C.A. No 80 of 1987, 21 May 1987, Barnes C.A. No 290 of 1988, 5 April 1989 and Hiratos C.A. No 117 of 1990, 23 August 1990 the Court reduced the sentence to six years' cumulative upon the 18-month sentence and recommended parole after three years.

In R v. Herricane C.A. No 339 of 1997, 29 October 1997, the applicant was convicted after a trial of 10 counts of receiving stolen property valued at $35,000.  The property was received from 10 different housebreakings over a period of two months or less.  The offences were part of a commercial enterprise to obtain money for drugs. 

Herricane, in some instances, negotiated the price to be paid for the stolen property and in most instances received part of the proceeds obtained from the sale of the stolen property.  He was sentenced to five years which was to be served concurrently with an earlier suspended sentence.

He was 24 years of age and had an extensive criminal history for property offences as a juvenile and as an adult.  His application for leave to appeal against sentence was refused.

These sentences tend to support the sentence imposed in this case.

Whilst the applicant cooperated extensively with the authorities in this case, it is not comparable to the case of Thompson, 1994 76 A.Crim.R. 75.  There are serious aspects to the applicant's offending here.  He was not a youth and was acting as a professional receiver of goods which he knew were stolen in the course of break and enters for his own profit.

The comparable sentences demonstrate that the sentence imposed was plainly within the appropriate range.  The sentence also sufficiently recognises any disparity between the applicant and his co-accused and properly takes into account his cooperation with the authorities in this case. 

In my view, the applicant could not argue that there is a justifiable sense of grievance on his part when his sentence is compared to that imposed on Clark, even taking into account his cooperation with the authorities and the consequences of that.  I would refuse the application for leave to appeal against sentence.

McPHERSON JA:  I agree.

CHESTERMAN J:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.