SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Mullins J.

[2]  CHESTERMAN JA:  I agree with the reasons of Mullins J.

[3]  MULLINS J:  On 5 December 2008 the applicant pleaded guilty to offences on two indictments.The applicant was sentenced to four years’ imprisonment for each of one count of receiving stolen property with a circumstance of aggravation (on the single count indictment) and one count of receiving stolen property and two years’ imprisonment for each of two counts of forgery and uttering and one count of fraud to the value of $5,000 or more.  Although the intention of the learned sentencing judge was to fix the date the applicant is eligible for parole after he had served 16 months’ imprisonment, the date that was specified as the parole eligibility date in the endorsements on the indictments was 5 March 2010 (after a period of 15 months).  The verdict and judgment record issued by the District Court at Beenleigh under r 62 of the Criminal Practice Rules 1999 (Qld) shows that the order of the court was that the date the applicant will be eligible for parole was fixed at 5 March 2010.

[4]  The grounds of appeal are specified as: 

(1) The sentencing judge erred when he proceeded on the basis that the Crown had submitted that the appropriate range was in the order of “five to six years’ imprisonment”;

(2) The sentencing judge erred when he concluded that a financial analysis revealed that the applicant’s offences were a “continuing enterprise over some time”;

(3) The sentencing judge erred when he failed to have regard to, or failed to give effect to, the significant efforts at rehabilitation which had been undertaken by the applicant; 

(4) The sentencing judge erred when he sentenced the applicant on the basis that 590 DVDs were the subject of the offence on the single count indictment, when the agreed schedule of facts stated that the total number of stolen DVDs received by the applicant in relation to this offence was 490 DVDs.

[5]  Mr Callaghan of senior counsel who appeared for the applicant made it clear that the applicant was not seeking to appeal on the basis that the sentences were manifestly excessive, but that the cumulative effect of the errors caused the sentencing process to be tainted by error and that this court should therefore sentence afresh.

Antecedents of applicant

[6]  The applicant was 40 years old when sentenced.  He was divorced and had two teenage children who were in his care.  His prior criminal history consisted of one appearance in the Magistrates Court in 2000 for possess property that may reasonably be suspected of being tainted property and two charges of receiving property.  No convictions were recorded and a total fine of $1,200 was imposed.

Details of offences

[7]  On 9 October 2005 police received information that the applicant was selling stolen DVD movies at the markets at Woodridge.  After initially lying about purchasing the DVDs that the applicant had for sale at the markets, the applicant admitted to the police that he had received large numbers of stolen DVDs from a person known to him as Jacqui on eight separate occasions.  He told police he had paid $10 to $15 for each of them and believed that they were stolen, and identified 223 DVDs that he had with him as stolen.  The applicant participated in an interview with police.  The applicant then identified a further 99 stolen DVDs which were located in his vehicle.  He then took police to his home and showed the police 168 stolen DVDs inside his house.  That made the total number of stolen DVDs that the applicant admitted to receiving as 490 DVDs.  This is the property which is the subject of the count of receiving on the single count indictment.  The eight occasions of receiving took place between 1 August and 19 September 2005.  The applicant was issued with a notice to appear on 31 October 2005. 

[8]  The police attended at the Woodridge markets again on 23 October 2005.  They observed the applicant had a large number of boxes containing DVDs and CDs on display.  Police seized the property on display at the applicant’s stall. 

[9]  In November 2005 police spoke with a witness who informed them that she would steal DVDs and CDs from various retailers and sell them to other contacts.  This informant told the police that she began selling DVDs and CDs to the applicant through an associate and then subsequently, from early 2005, sold DVDs and CDs to the applicant directly.  This informant supplied the applicant with approximately 230 DVDs in total.  She said that the DVDs she sold the applicant were always in the store security cases with price tags still attached.  The applicant was not charged with the offence of receiving with a circumstance of aggravation based on the information from the informant until 8 August 2006.  In relation to this offence, the agreed schedule of facts that was placed before the sentencing judge (exhibit 2) included the following statement:

“A forensic analysis of the accused’s bank accounts was conducted and the accused was found to be in possession of approximately (sic) substantial excess and unaccounted income.”

[10]  The sentencing proceeded on the basis that the total value of the property the subject of both receiving charges was $21,600 (720 DVDs at $30 per DVD). 

[11]  The other three offences on the second indictment arose out of a home loan obtained by the applicant using falsified documents.  Each of the forgery and uttering charges related to falsified taxation notices of assessment for the applicant for 2001 and 2002 that were submitted to the financier to support the loan application.  The loan for a total amount of $185,000 was approved and advanced on 17 June 2003.  The financier would not have approved the loan, if it had known that the two tax documents had been forged. 

[12]  The count of fraud to the value of $5,000 or more related to the applicant dishonestly obtaining the mortgage funding to the extent of $185,000.  The loan and supporting mortgage continued in existence at the date of the sentence, as the applicant managed to keep up to date with the repayments.  No loss had been suffered by the financier by the date of the sentence. 

Submissions at the sentence hearing

[13]  The prosecutor submitted that the receiving was at a commercial level and was more serious than isolated acts of receiving.  He submitted that the criminality involved in the charges relating to the mortgage was the dishonesty in obtaining the benefit of the mortgage.  The sentencing judge asked the prosecutor about the quantum of the unaccounted income that was revealed by the forensic analysis.  The prosecutor stated that it was approximately $140,000 and that there were other proceedings with respect to that money. 

[14]  The prosecutor submitted that a range of between four and six years’ imprisonment was appropriate as a head sentence and referred to R v Singleton [1999] QCA 381 and R v Haddad [2001] QCA 171 (Haddad).  He submitted that the plea of guilty could be recognised by ordering a parole eligibility date or suspension of the sentence after one-third of the sentence had been served. 

[15]  The applicant’s counsel submitted that the head sentence should be about 18 months’ imprisonment.  He pointed out that the value of the property the subject of the receiving charges was calculated on the basis of $30 per DVD which was the retail price.  He submitted that the applicant’s relationship as purchaser of stolen DVDs from the informant was commenced by the informant and was a “mutually convenient” relationship.  He informed the sentencing judge that in relation to the unaccounted income of $140,000 (which the applicant’s counsel advised was in respect of a period of three years commencing 1 January 2003), the applicant had instructed him that included in that sum was a payment of $50,000 received by the applicant as criminal compensation.  The point was made that the applicant was being dealt with for receiving property to the value of $21,600 (and the dishonesty offences) and not for running a cash business.  He explained that the police had charged the applicant with receiving a much larger number of items (about 5,000), that that was not pursued when the applicant produced 10,000 receipts. 

[16]  The applicant’s counsel informed the sentencing judge that the applicant had ceased selling second-hand goods after being arrested on 8 August 2006 and that between January 2007 and the date of the sentence the applicant had been working fulltime as a courier. 

     Sentence

[17]  In summarising the facts of the offences, the sentencing judge incorrectly described the receiving charge on the single count of indictment as relating to 590 DVDs, rather than the 490 DVDs that were particularised in the schedule of facts.  The judge also incorrectly referred to the submission of the prosecutor as suggesting an appropriate range “in the order of five to six years’ imprisonment”.  The judge referred to the applicant’s counsel’s submission that the head sentence should be “in the order of something like 18 months”.  The judge described the commercial aspect of the offending as an aggravating feature and stated:

“The fact that it would seem that you were selling items which you knew had been stolen from retail outlets to members of the public, and it seems that that had carried on for some time.”

[18]  The sentencing judge referred to the forensic analysis of the applicant’s bank accounts that was conducted and that the applicant was found to be “in possession of approximately (sic) substantial excess and unaccounted income.”  The judge stated that he placed “no other weight upon it other than that it shows that this was a continuing enterprise over some time.”  Apart from the commercial aspect, the judge also referred to “a degree of professionality” to the offending. 

[19]  The judge then concluded that the prosecutor’s range was closer to the appropriate mark and fixed on five years’ imprisonment as the appropriate head sentence, but reduced that to four years’ imprisonment to take account of the matters of mitigation.  In relation to each term of imprisonment that the sentencing judge imposed, he stated “the parole eligibility recommendation is at 16 months”.  There was then a discussion about setting the actual date for parole eligibility.  The prosecutor informed the judge that 16 months from the day of sentence was 5 April 2009.  That was corrected to 2010.  Defence counsel then submitted that it should be 5 March 2010, but corrected himself and accepted 5 April 2010.

Endorsement of the indictments

[20]  Each of the indictments was endorsed by the judge’s associate, as required by r 61 of the Criminal Practice Rules 1999, to record the sentence of imprisonment for each offence.  Setting out the endorsement for the sentence for the single count indictment illustrates the deficiency in that the date recorded as the parole eligibility date does not accord with that specified by the judge:

“IMPRISONMENT – Conviction Recorded

Order that you be sentenced to imprisonment for a period of 4 years.

*Recommend that you be eligible to be considered for parole after serving a period of 16 months imprisonment.

*PAROLE ELIGIBILITY DATE:  05/03/2010.” 

[21]  Where a sentence of imprisonment is imposed, sections 160A to 160D of the Penalties and Sentences Act 1992 (Qld) deal with the form of orders that the sentencing judge must make in relation to a person’s release on parole.  The endorsement of the indictment by the judge’s associate to record the judge’s sentence should conform with the current parole regime.  There should be no reference in the endorsement to any recommendation in relation to parole (which is proscribed by s 160A(3) of the Penalties and Sentences Act 1992).  The period of time after which the prisoner is given a parole release date or a parole eligibility date (depending on the sentence) should not be endorsed on the indictment, as it is the relevant date that must be fixed by the judge.

     Errors in the course of the sentencing

[22]  On the receiving charges the prosecution confined the facts to the receiving by the applicant of the 720 identified DVDs.  Although both receiving charges specified a time period of between 1 January 2003 and 31 December 2005 during which, on various dates, the applicant had received a quantity of DVDs and CDs, the relevant transactions were particularised as covering a shorter period in the vicinity of 12 months.  The gist of the offence of receiving is the receipt by the offender of tainted property, where the offender has reason to believe it is tainted property:  s 433 Criminal Code.  It had little to do with the facts of the receiving offences put before the sentencing judge for the prosecutor to refer to the results of a forensic analysis of the applicant’s bank accounts over a period of three years.  The misleading nature of that information was emphasised when the applicant’s counsel had to convey his instructions about the criminal compensation payment and remind the judge that the defendant was not being dealt with for running a cash business.  Although the judge endeavoured expressly to limit the purpose for which he used that information by placing no other weight upon it other than that it showed there was a continuing enterprise over some time, that itself gave relevance to the forensic financial analysis that was not warranted by the prosecution case.  The applicant was not charged with an offence of which carrying on a business was an element.  The forensic analysis was not limited to the period of time that related to the 720 DVDs received by the applicant or otherwise connected to the applicant’s offending.

[23]  Of less significance were the incorrect references by the sentencing judge to the number of DVDs the subject of the receiving charge on the single count indictment and the misstatement of the prosecutor’s suggested range for the head sentence for the receiving charges.  When those errors are coupled, however, with the relevance placed by the sentencing judge on the forensic analysis on the applicant’s bank account which it did not have in the circumstances of the applicant’s offending, the sentencing process was tainted with error that requires the sentences to be set aside and the sentencing discretion to be exercised afresh:  House v R (1936) 55 CLR 499, 504-5. 

Exercise of sentencing discretion

[24]  The applicant was a mature man who purchased stolen DVDs which he then sold at a profit.  He regularly made purchases from the informant whom the applicant knew stole the DVDs from retail businesses.  It did not reduce the seriousness of the offending that it was the informant who made the approach to the applicant.  The applicant provided the means for a professional thief to dispose of DVDs stolen from retailers.  Although the applicant’s prior conviction for like offences was a much less serious example of the same type of offending, it was a relevant prior conviction.  The applicant also had not been discouraged from his criminal activity by being charged with receiving after the first occasion in October 2005 that his stall was raided by the police.

[25]  The decision of Haddad was also relied on by the prosecutor in this Court.  The offender in that matter had pleaded guilty to two counts of receiving commercial quantities of stolen cigarettes.  The offender acted as a professional receiver of goods for his own profit when he knew the goods were stolen through breaking and entering.  The offences were committed over a period of two and one-half years.  There was a high degree of cooperation with authorities.  The value of cigarettes received during the relevant period was about $100,000.  The sentence on each count of receiving of five years’ imprisonment to be suspended after serving a period of 15 months’ imprisonment with an operational period of five years was not disturbed on appeal. 

[26]  The offending in Haddad was more serious than the applicant’s offending.  When the applicant’s overall criminality is considered in a light of the additional dishonesty involved in the mortgage related offences, the head sentence of four years for each of the receiving charges is appropriate. 

[27]  It did not emerge as clearly before the sentencing judge, as it did in the submissions in this Court, that the delay in the resolution of the applicant’s charges was due to the initial reluctance of the prosecution to accept pleas of guilty based on the admissions that the applicant had made in his record of interview on 9 October 2005 in respect of receiving 490 DVDs and the ambit of his offending disclosed by the informant. 

[28]  A period of over three years elapsed between the applicant’s original record of interview that supported the charge of receiving on the single count indictment and the sentencing.  Apart from the applicant’s cooperation with the administration of justice, particularly in relation to the first charge of receiving, the intervening period between the charges and the sentencing was used constructively by the applicant to self-rehabilitate.  That is relevant to the form of order that should be made for the applicant’s release and the determination of the period of time that should be served in actual custody.  The submission was made by the applicant’s counsel in this Court that the efforts which the applicant has made since August 2006 made it difficult to identify any purpose which would be served by a sentence which required the applicant to spend more than 12 months in actual custody. 

[29]  Balancing all the relevant considerations, I would impose a sentence of four years’ imprisonment in respect of each of the receiving charges which should be suspended after a period of 12 months’ imprisonment with an operational period of four years.  The other three dishonesty offences involved considerably less criminality and would be appropriately dealt with by concurrent sentences of 12 months’ imprisonment. 

     Orders

[30]  The orders which should be made are:

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentences imposed on 5 December 2008.

4. In respect of each of count 1 on Beenleigh District Court Indictment No 634 of 2006 and count 4 on Beenleigh District Court Indictment No 373 of 2007, the applicant is sentenced to four years’ imprisonment and it is ordered that the term of imprisonment be suspended after serving a period of 12 months’ imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of four years, if the applicant is to avoid being dealt with for the suspended term of imprisonment.

5. In respect of each of counts 5, 6 and 7 on Beenleigh District Court Indictment No 373 of 2007, the applicant is sentenced to imprisonment for a period of 12 months.