Regina v Valkovich [2000] NSWCCA 506

New South Wales Court of Criminal Appeal

CITATION : Regina v Valkovich [2000] NSWCCA 506 FILE NUMBER(S) : CCA 60154/00 HEARING DATE(S) : 01/12/00 JUDGMENT DATE : 1 December 2000

PARTIES : Regina (Appellant) Michael Valkovich (Respondent) JUDGMENT OF : Fitzgerald JA at 1; Whealy J at 13; Howie J at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0490 LOWER COURT JUDICIAL Rummery DCJ OFFICER :

COUNSEL : L M B Lamprati (Appellant) J W Fliece (Respondent) SOLICITORS : S E O'Connor - Crown (Appellant) Horowitz & Bilinsky (Respondent)

LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60152/00 DC 98/11/0490 FITZGERALD JA WHEALY J HOWIE J

FRIDAY 1 DECEMBER 2000

REGINA v VALKOVICH

JUDGMENT

1 FITZGERALD JA: The Director of Public Prosecutions has appealed pursuant to section 5D of the Criminal Appeals Act 1912 against the sentence imposed upon Michael Valkovich (the respondent) by his Honour Judge Rummery QC in the District Court in Sydney on 18 February 2000. 2 The respondent had been found guilty after trial on 1 November 1999 of an offence of receiving $34,400 belonging to two hotels, which I need not more fully describe, knowing the money to have been stolen contrary to section 188 of the Crimes Act 1900. The sentencing judge ordered the respondent to perform 500 hours of community service and imposed a fine of $5,000. Nine months have passed since the respondent was sentenced, and he has completed the entire period of community service and paid his fine by monthly instalments of at least $250, leaving only $1,820 to pay. 3 The respondent was the director of a security company which performed work for the two hotels. On Monday 15 December 1997 an employee of the security company collected two cash bags containing weekend takings from the hotels totaling in excess of $84,000. The employee then drove to the vicinity of the St George Bank at Dee Why to deposit the money. When he parked his vehicle, the employee was held up by knife point by an unknown offender. After tying the employee's hands with plastic cable ties to the steering wheel of his vehicle and removing the cash bags, the offender fled. 4 On Tuesday 23 December 1997 police executed search warrants at the business premises of the security company and later at the respondent's residence. Ten bundles, each containing ten $50 dollar notes, were found in the desk in the respondent's office, and a further $9,010 was found in a filing cabinet. The money was bound in a similar manner to that which had been stolen. Police also located a case of plastic ties which were identical with those used to tie the employee up during the robbery. A further $10,000 was found underneath some towels in a wardrobe in a bedroom of the respondent's home and a further $12,980 was found in a box on top of the wardrobe. The equivalent of $1,030 in Deutschemarks were found underneath a television set in the bedroom. $700 was found in the respondent's wallet. The respondent's banking records show a deposit of $2,000 in cash had been made between the date of the robbery and the date of execution of the search warrants. 5 After the respondent was convicted, an order for the restitution of the money which had been discovered by the use of the search warrants to the hotels was made under section 438 of the Crimes Act without objection from the respondent. 6 Shortly stated, the prosecution submission is that no sentence other than a full time custodial sentence was appropriate. Reference was made to the respondent's serious breach of trust and his not guilty plea, which it was submitted indicated a lack of remorse. Emphasis was placed on the seriousness of his offence and the need for deterrence particularly because theft is encouraged by receivers. Correctly, I think, it was submitted that a custodial sentence is ordinarily called for for an offence such as that committed by the respondent. 7 The prosecution submitted that his Honour gave too much weight to two matters; namely, that the respondent will be unable to work in the security industry again as a result of his conviction, and that he will have to bear the disgrace of his conviction not only in that industry but in the Serbian community of which he is a member. It was submitted that these were matters of limited significance. I agree, but I am not persuaded that his Honour placed excessive weight upon either or both of them. 8 The prosecution also submitted that the sentencing judge referred on more than one occasion to the respondent's personal characteristics. However, that was an appropriate matter for consideration. The respondent was entitled to be dealt with as a first offender of previously impeccable character. 9 The respondent is a 32 year old married man with no prior convictions who had been married shortly before the offence. He is an only child whose father was killed in a work accident when the respondent was aged two years. The respondent has a very close relationship with his mother. He has been a member of the Serbian Orthodox Church since childhood and its Youth President. He has been a volunteer fire fighter, who spent each Sunday at the station on call or performing other duties. He has been working since he was 15 and obtained qualifications as a pilot. He established his own security business in which he worked very long hours. He is no longer able to conduct that business but a previous employer, a landscaping company, has reemployed him. 10 A presentence report available to the sentencing judge indicated that the various persons who were interviewed described the respondent as "an honest, hard-working, completely trustworthy person, always first to help others and perhaps a little too eager to please and not assertive enough". It was said that his involvement in illegal activity was entirely out of character. 11 Curiously, the respondent maintains his innocence despite the strength of the case against him. He has a strong support network and the presentence report assessed him as suitable to undertake work pursuant to a community service order or for a sentence of periodic detention. The respondent's involvement in the offence remains unexplained. There is no reason to doubt that he was involved, but equally there is no basis for a conclusion that he participated in the robbery or otherwise was involved prior to receiving part of the proceeds. 12 The sentence imposed upon the respondent was undoubtedly lenient. However, it is not the function of this Court to determine an appropriate sentence for the respondent as though he had not been sentenced. The principles controlling appellate intervention in prosecution appeals against sentences are well established and have recently been reaffirmed by the High Court in Dinsdale [2000] HCA 48. and earlier this week by this Court in JCE [2000] NSWCCA 498. Conformably with those principles, the appeal must be dismissed. 13 WHEALY J: I agree. 14 HOWIE J: I also agree. 15 FITZGERALD JA: The appeal is dismissed. **********

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