Court of Appeal (Qld)|2007-08-03|Before: de Jersey CJ, Jerrard JA and Mullins J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
de Jersey CJ, Jerrard JA and Mullins J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN ALLOWED
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN ALLOWED– GENERALLY – wherethe applicant pleaded guilty to all counts ontwo indictments, charging the commission of nine different offences againstproperty– where the applicant was 35 years old – where theapplicant had an extensive criminal history for like offences –whetherthe sentence was manifestly excessiveR v Cummins [2004]QCA 350CA No 294 of 2006, 23 September 2004, distinguishedR vEaston [2002]QCA 110CA No 12 of 2002, 21 March 2002, consideredR v Faramus[1999]QCA 167
CA No 30 of 1999, 11 May 1999, considered
R v Karbanowisz
[2003]
QCA 543
CA No 295 of 2003, 4 December 2003, considered
R v Lennon
[2005]
QCA 10
CA No 393 of 2004, 7 February 2005, considered
R v
McDowall [2005]
QCA 260
CA No 126 of 2005, 26 July 2005, distinguished
R v
Muscat [2005]
QCA 129
CA No 233 of 2005, 29 April 2005, considered
R v Ross [2000]
QCA 49
CA 406 of 1999, 29 February 2000, distinguished
R v
Speechley, ex-parte A-G
CA No 510 of 1994, considered
R v
Smith [2000]
QCA 127, CA 405 of 1999, 11 April 2000, distinguished
R v Taylor
[2007]
QCA 214
CA No 88 of 2007, 12 July 2007, considered
R v Western [2005]
QCA 176
CA No 87 of 2005, 30 May 2005, considered
R v Williams [2004]
QCA 27
CA No 2 of 2004, 16 February 2004, distinguished
Judgment (22 paragraphs)
[1]
Director of Public Prosecutions (Qld) for the respondent
[2]
[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with the orders proposed by His Honour and with his reasons.
[3]
[2] JERRARD JA: On 27 March 2007 Darryl Bryant pleaded guilty to all counts on two indictments, charging the commission of nine different offences against property. The learned sentencing judge observed that the 35 year old Mr Bryant had an extensive criminal history for like offences, and in the opinion of the judge was a serious and serial property offender and likely to be a confirmed recidivist. His most recent offending, to which he had pleaded guilty that day, had caused a loss of almost $6,500 to different businesses by way of property stolen or damaged. Most of that recent offending had been committed after Mr Bryant was released on bail, and in addition he was on probation when he committed a number of those offences. With a view to both personal and general deterrence, the learned judge sentenced Mr Bryant to five years imprisonment, and fixed a parole eligibility date of 27 March 2009 i.e. in two years. Mr Bryant appealed, urging that the sentences were manifestly excessive, and Mr Moynihan SC ultimately submitted on his behalf the sentence should have been three years imprisonment with an early parole date.
[4]
[3] Mr Bryant admitted by his pleas of guilty to committing a number of property offences (mostly breaking and entering into premises) between 28 April 2005 and 18 May 2005, and a second series of property offences committed between 11 January 2006 and 21 January 2007. His offences included breaking into five different business premises, a warehouse, receiving stolen property, and fraud. The total of the un-recovered stolen property, and damage, was $6,485. His identity as an offender at most premises was established by DNA analysis of splatterings of blood left at the scene, apparently when Mr Bryant had injured himself gaining entry. He was twice arrested during that period, and then re-offended when on bail.
[5]
[4] Mr Bryant has convictions for property offences since 1991, mostly in Victoria. He was first sent to a prison in May 1993, for offences including robbery, theft of a motor car, false imprisonment, and intentionally or recklessly causing an injury. Other convictions for property offences (burglary and theft) were recorded in January and February 1995, and prison sentences imposed; then more convictions and jail sentences for property offences were recorded in August 1995, September 1995, April 1997, April 1998, and November 1998.
[6]
[5] Those were the sentences in Victoria. There were other convictions in that State as well, including for offences of dishonesty (without imprisonment being ordered), in the year 2000. But in January 1998 Mr Bryant was convicted of breaking, entering and stealing in the Southport Magistrates Court, then of assault in the Southport Magistrates Court in April 2001, and of offences of fraud, stealing, and possession of dangerous drugs on 15 October 2003, again in the Southport Magistrates Court. An intensive drug rehabilitation order was made, under s 19 of the Drug Rehabilitation (Court Diversion) Act 2000 (Qld), subsequently vacated on 6 September 2004, and a sentence of six months imprisonment and two years probation was substituted. That probation term was running throughout the period in which Mr Bryant committed most of the offences for which he was sentenced on 27 March 2007.
[7]
[6] Mr Moynihan SC submitted that the learned judge had erred by imposing a manifestly excessive head sentence, or by failing adequately to moderate that head sentence for the plea of guilty. He submitted that comparable decisions of this Court demonstrate that, for a young offender with little or no criminal history who commits relatively few unsophisticated break and enters on commercial premises, causing a total loss in the order of $6,500, non-custodial sentences are within range. That may be so, but the cases to which he referred in support of that submission suggest rather that offenders aged under 25, who plead guilty to the commission of a number of offences against property, and who have either no prior history of convictions or very little relevant history, can also be sentenced to relatively short terms of imprisonment and which this Court will uphold. That is particularly so where those relatively young, largely first offenders, offend again when released on bail.
[8]
[7] Mr Moynihan's submissions had referred to the following cases: R v McDowall[2005] QCA 260, R v Williams[2004] QCA 27, R v Speechley, ex-parte A-G CA No 510 of 1994, R v Cummins[2004] QCA 350, R v Ross[2000] QCA 49, and R v Smith[2000] QCA 127. Mr Moynihan SC had also submitted that a mature offender with a significant criminal history would not attract a head sentence exceeding two years imprisonment, referring to those same cases; but I respectfully consider they do not support that submission.
[9]
[8] In R v McDowall, that offender was 25 at the time of sentence, had committed seven offences against property, and offended on bail; he had no prior convictions, and this Court upheld a sentence of nine months imprisonment to be suspended after serving one month. He stole or damaged property to a total of about $3,500. In R v Williams, that offender pleaded guilty to 10 counts of offences against property, committed to support an addiction to drugs, and some of those offences were committed when on bail after being charged for others. She stole or damaged property worth about $7,000, had no prior convictions, and had quite strong matters in mitigation in her personal circumstances. This Court upheld a sentence of 18 months imprisonment suspended after serving four months.
[10]
[9] In R v Speechley, that offender's relatively lenient sentence of 12 months imprisonment, all suspended, in respect of the commission of eight offences against property by a 25 year old offender with an extensive history of having committed at least 20 other offences of breaking and entering, and who stole approximately $10,000 worth of property, is explained by the non-custodial sentences imposed on his co-offenders, and the submissions by the Crown Prosecutor at the time of his sentence that Mr Speechley's sentence should not be imprisonment.
[11]
[10] In R v Cummins that offender pleaded guilty to 14 offences against property and one of assault, but he had stolen or damaged only some $460 worth of property. His last offence was committed when on bail for other charges, and he had some prior convictions for like offences. He was only 20 when sentenced, and had had a difficult childhood. This Court upheld a sentence of three months imprisonment, to be followed by probation. A similar sentence was upheld in R v Ross, where that 18 year old offender pleaded guilty to committing 22 counts of offences against property, some of which were committed on bail. He had spent 93 days in custody. Finally, in R v Smith, that youthful offender pleaded guilty to committing 18 offences against property, ($20,000 worth of property was un-recovered), and that offender constantly re-offended on bail; but he had only one prior conviction and this Court ordered that he serve 12 months by way of an intensive correction order. That appears to have reflected his youth.
[12]
[11] Those decisions support shorter periods of imprisonment for those who are young, with little history, who commit a series of property offences, particularly when on bail, followed usually by supervision in the community. They do not establish that mature offenders with significant criminal histories do not receive more than two years jail for a series of property offences. Mr Moynihan SC referred to the decisions in R v Easton[2002] QCA 110, R v Karbanowisz[2003] QCA 543, R v Lennon[2005] QCA 10, R v Muscat[2005] QCA 129, and R v Western[2005] QCA 176, for the submission that the range of available penalty increases to three to five years imprisonment in cases where there is in excess of 20 offences, with a loss of property exceeding $20,000. Those particular decisions generally support sentences in the order of four to four and a half years imprisonment, with a significant degree of suspension before the mid-point of that sentence, for offenders with prior criminal histories engaged in recidivist theft causing loss in the order suggested by Mr Moynihan SC.
[13]
[12] In R v Easton that offender pleaded guilty to 17 offences against property, as well as in excess of 50 summary offences, and had caused a total loss to other persons of some $42,435. He had offended when on bail, but had admitted his offending, and was 34 years old; he had a criminal record that included offences of minor dishonesty. This Court held that a four year head sentence would have been appropriate, but the sentence imposed - of three years - could be supported, because the learned judge had reduced that head sentence by one year to allow for the pleas of guilty and other matters. The judgment in that matter refers to a decision in R v Shearer[1996] QCA 213, where that applicant, who had some previous convictions, admitted by his pleas to 52 counts of offences against property. He was aged 28, and had caused the loss of some $29,000 to other people. His sentence of four years imprisonment with parole recommended after 18 months was upheld. Likewise in R v Davidson[1997] QCA 279, that 30 year old offender who pleaded guilty to 22 offences against property causing a loss of $30,000 to other people, and who had some prior convictions, had his sentence of four and a half years upheld, with parole recommended after 18 months. Those outcomes were consistent with the outcomes in that second set of decisions to which Mr Moynihan SC referred.
[14]
[13] In R v Karbanowisz, that 21 year old offender who pleaded guilty to 23 offences against property, and who had offended when on probation and when on bail, and caused the loss of about $60,000 to other people, had his sentence of four years imprisonment upheld; but this Court ordered that it be suspended after he had served nine months. That order was made to reflect certain exceptional personal circumstances in his case, and this Court would otherwise have maintained the sentence ordered by the original judge, namely suspension after 15 months. In R v Lennon, that 27 year old offender, with a lengthy prior history for like offences, pleaded guilty to 24 counts of offences against property. He had offended when on bail, and had caused the loss of some $17,537 to other people. His sentence of four years imprisonment, with parole recommended after 20 months, was upheld. His offending had also included a serious offence of dangerous operation of a motor vehicle, when attempting to escape from a police pursuit.
[15]
[14] A five year sentence was upheld in R v Muscat, where that offender pleaded guilty to 54 offences against property, and to 10 summary offences as well. He had caused a loss of approximately $50,000 to other people, was 35 years old, and had a criminal history which included a number of offences of dishonesty. This Court upheld his sentence of five years imprisonment with parole recommended after two years. That offender had not previously been sentenced to any imprisonment, but repeatedly re-offended on bail. He stole property of far greater value than Mr Bryant did.
[16]
[15] In R v Western that 25 year old offender pleaded guilty to seven counts of offences against property, which caused the loss of approximately $83,000 to other people. He had a criminal history, and had offended on bail. This Court upheld the head sentence of four years imprisonment, but recommended consideration for release on parole after 18 months.
[17]
[16] That second set of cases to which Mr Moynihan SC referred reveal the importance of the total value of what is stolen, as well as the impact that a prior criminal history has, upon a choice between (on one hand) a sentence intended to effect a strong personal deterrent, or (on the other) a sentence intended to encourage and assist in rehabilitation. Mr Bryant's long history of repeated offending against property provides no support for the latter variety of sentence in his case, and strong support for a sentence which will act as both a general and personal deterrent to him.
[18]
[17] But there remains the question of the appropriate head sentence. Five years is well beyond the head sentence imposed where a recidivist offender took property valued in all at less than $7,000. Decisions such as that in R v Meredith[2002] QCA 481 suggest a range of five to six years as a head sentence are appropriate where far more is stolen. Meredith stole $99,000, and committed 39 counts. His offending was both when on probation and when undergoing a suspended sentence. He was 28, and had been sentenced on eight prior occasions to sentences of imprisonment. As well as being dealt with for 39 counts of property offences, he was also sentenced on a count of dangerous operation of a motor vehicle with circumstances of aggravation, arising out of an attempt by him to avoid a police pursuit.
[19]
[18] Other examples of sentences upheld or imposed by this Court in the five to six year range include the sentence upheld by this Court in the matter of R v Josey ex parte Attorney-General of Queensland[2003] QCA 44 in which that offender, who was 17 and 18 when he offended and 21 when sentenced, had been dealt with for 153 offences against property which had caused a loss in the order of $180,000 to different complainants. This Court upheld a sentence of five years imprisonment, suspended after two years and six months, with an operational period of five years, and dismissed an Attorney's appeal. He had been in custody over two years by the time of the sentence, and had become drug free.
[20]
[19] Mr R Martin SC for the respondent referred the Court to the decision in R v Faramus[1999] QCA 167, where this Court upheld a sentence of six years imposed on an applicant in respect of 16 offences committed against property, causing a loss to complainants in the order of $24,000. That applicant was in his late 30's, and was first convicted of breaking, entering and stealing in 1977. Since then, he had appeared in court repeatedly in respect of offences of dishonesty, and been sentenced to imprisonment in 1979, 1981, 1984, 1988, 1990, 1991, 1992, 1993, and 1995. His longest sentence was nine years for armed robbery in 1984, and two years cumulative for another offence. This Court described him as having been a very persistent offender for the last 20 years, and did not disturb the six year sentence.
[21]
[20] The sentence Mr Moynihan SC finally sought was higher than that imposed recently by this Court in R v MJTaylor[2007] QCA 214 where that 20 year old offender - 22 when sentenced - succeeded on appeal in having his sentence reduced to two years imprisonment, with a suspension after eight months coinciding with a parole release date after eight months. He had pleaded guilty to committing 22 offences against property, and had offended while on bail, causing others a total loss of approximately $9,119. He volunteered to the police the commission of most of those offences, and had a very limited prior history. That last matter significantly distinguishes him from Mr Bryant, who is also significantly older, and who was fairly described by the sentencing judge as a serial property offender, and probably a confirmed recidivist. That feature in Mr Bryant's case makes a deterrent sentence necessary.
[22]
[21] In the circumstances I would allow the application and the appeal, and substitute instead a sentence of four years imprisonment, with a parole eligibility date of 27 September 2008 i.e. after 18 months.