R v Howie [2009] QCA 50

SUPREME COURT OF QUEENSLAND

CITATION: R v Howie [2009] QCA 50

PARTIES: R v HOWIE, Leslie James (applicant/appellant)

FILE NO/S: CA No 229 of 2008 DC No 2149 of 2008 DC No 1018 of 2008 DC No 156 of 2008

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 13 March 2009

DELIVERED AT: Brisbane

HEARING DATE: 5 March 2009

JUDGES: Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **Application for leave to appeal against sentence granted.****Appeal allowed.****Set aside the sentences imposed in the District Court for the burglary offences in count 5 of indictment 156 of 2008 and count 3 in indictment 2149 of 2008 of three years imprisonment.****Order instead that, in respect of count 5 in indictment 156 of 2008, the appellant be sentenced to two years imprisonment to be suspended after serving eight months of that term for an operational period of three years; and in respect of count 3 in indictment 2149 of 2008 the appellant be sentenced to two years imprisonment.****Set aside the parole release date fixed by the sentencing judge and instead fix a parole release date on 23 April 2009.**Declare pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) **that the six days spent in pre-sentence custody between 18 July 2007 and 23 July 2007 be deemed time already served under the sentence imposed in the District Court as varied by these orders.**Otherwise confirm the sentences imposed in the District Court.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of burglary, seven counts of stealing and eight counts of fraud – where the applicant stole items from his family, girlfriend, flatmate and stores in order to feed his drug addiction – where the applicant had a prior conviction for stealing and fraud – where the applicant breached a 12 month probation order imposed for that prior conviction by committing some of the current offences – where the value of items stolen was low and where some of the items had been recovered by the applicant – where the applicant was sentenced to three years imprisonment with release on parole after 12 months for the burglary counts and lesser concurrent sentences for the stealing, fraud and breach of probation counts – whether sentence manifestly excessive / Criminal Code 1899 (Qld), s 419(4) Penalties and Sentences Act 1992 (Qld), s 159A / R v Bryant (2007) 173 A Crim R 88; [2007] QCA 247, distinguished R v Donald [2000] QCA 399, distinguished R v Heath & Heath [1995] QCA 170, distinguished R v Taylor [2007] QCA 214, applied

COUNSEL: C L Morgan for the applicant P F Rutledge for the respondent

SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

[1] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA. I agree with his Honour’s reasons and with the orders proposed by his Honour.

[2] MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.

[3] FRASER JA: On 29 August 2008 the applicant was convicted on his pleas of guilty to 17 offences committed between 30 October 2006 and 31 January 2008. On the two most serious offences of burglary, charged under s 419(4) of the Criminal Code, he was sentenced to three years imprisonment. Concurrent sentences of 18 months imprisonment were imposed on the other offences, seven counts of stealing and eight counts of fraud. He was also convicted of a breach of a probation order that had been imposed on 25 October 2006 and re-sentenced to a concurrent term of six months imprisonment. A parole release date was fixed after the applicant had served 12 months imprisonment, that is, on 23 August 2009. Six days pre-sentence custody was declared to be time served under the sentence.

[4] The applicant seeks leave to appeal on the ground that the sentence was manifestly excessive.

Circumstances of the offences

[5] The applicant stole a variety of items including jewellery, mobile phones, tools, computer games and the like from his girlfriend and from members of his family. He pawned those items, or some of them, for small amounts of cash which he used to buy drugs. He was apprehended by police when he, with a co-offender, stole toiletries from supermarkets in September and October 2007.

[6] The applicant committed 12 of his offences in breach of a 12 month probation order that had been imposed on 25 October 2006 when he had been sentenced for similar, earlier offending.

[7] He committed the burglary offences in June 2007 and January 2008 when he was staying with his sister. Whilst his sister was away he, having been absent from the house, re-entered (on the first occasion through a window he had left unlocked and on the second occasion through a manhole in the bathroom), and stole some DVDs and computer games or equipment. He was charged with fraud for pawning the items he had stolen: he received only $40 and $70 respectively for the proceeds of his burglaries.

[8] In all, over a 14 month period the applicant stole property from family members on nine separate occasions, on one occasion he stole property from a flatmate and on two occasions he broke into his sister's house and stole from her; and he pawned stolen property on 16 occasions. He stole property from supermarkets on a number of occasions between 1 September and 4 October 2007. The total amount stolen from department stores was said to be worth $1,050, but some of that may have been recovered from the co-offender. At the sentence hearing the applicant's counsel submitted, without contradiction, that the property stolen from the applicant's family had been returned to them. The total loss is unclear, but it seems to have been less than two or three thousand dollars, and perhaps significantly less than that.

The applicant's personal circumstances

[9] The applicant was 22 and 23 years of age when he committed those offences and he was 24 years old when sentenced. He stole to feed his drug addiction. He had what the prosecutor at sentence described as a "somewhat insignificant criminal history". It included a few relatively minor offences and the stealing and fraud offences for which he was given probation on 25 October 2006. Those earlier offences were also attributed to his drug addiction.

[10] The applicant's response to the supervision under the probation order was unsatisfactory: after a relatively short time he was unreliable and generally non-compliant with the conditions of the order. He continued to take drugs and to commit offences of dishonesty to finance that addiction.

[11] But although the applicant stole from family members they remained supportive of him in his serious attempts to rehabilitate himself. His mother and two sisters attended Court when he was sentenced. A psychologist expressed the opinion that although the applicant had a significant opiate dependency it appeared to be gradually becoming controlled with the use of methadone, notwithstanding two lapses into heroin use after the applicant commenced that program. The applicant had made efforts to reduce his substance use, at times with some success, but had experienced difficulties remaining heroin-free when mixing with peers who used it. The tragic death of his brother some years earlier had undermined his efforts in that respect. The psychologist thought that the applicant posed a moderate risk of general recidivism, primarily drug-related offending, but was conversely likely to reduce that risk with appropriate management and/or treatment. The applicant had insight into several of the factors that led to his criminal behaviour, he accepted responsibility for it, and he was prepared to participate in appropriate rehabilitation and support programs. It is notable in that respect that the latest of the offences for which the applicant was sentenced occurred in January 2008, more than six months before he was sentenced.

[12] The schedule of facts tendered by the prosecutor at the sentence hearing also confirmed that the applicant had fully co-operated when he was apprehended, and that he made full admissions.

Sentencing remarks

[13] The sentencing judge did not accept the submission made by the prosecutor that the appropriate sentence fell within the range of 18 months to two years imprisonment. Defence counsel had submitted that the appropriate range was 12 to 18 months imprisonment. In sentencing the applicant to three years imprisonment on each of the burglary counts the sentencing judge said that those counts must attract a punishment which would be a deterrent to others. The judge described the indictable offences as serious offences. The applicant had embarked upon a "spree or rampage of criminal behaviour" including gross breaches of trust to his family; he had committed the offences not only in breach of his probation conditions but also in breach of his bail undertakings; and whilst there was no doubt that the applicant committed the offences in the grip of a serious drug addiction, that was of his choosing. The judge referred also to the fact that the applicant had a loving and supportive family, and he took into account the applicant's age, his pleas of guilty to the offences at an early date, his co-operation with the administration of justice, but also that the applicant was a recidivist offender.

Discussion

[14] Burglary is a serious offence, but these burglaries were plainly relatively minor examples of the offence. In my respectful opinion they did not merit sentences as severe as three years imprisonment.

[15] Unfortunately the sentencing judge was not referred to R v Taylor [2007] QCA 214, upon which the applicant's counsel appropriately relied in this application. The Court there set aside a sentence of three years imprisonment, with a parole release date after 12 months, and substituted sentences of two years imprisonment suspended after eight months for an operational period of three years (for 10 counts) and two years imprisonment with parole after eight months (for the remaining 12 counts). Taylor was a little younger than the applicant – he was 20 years of age when he committed his 22 offences of dishonesty and 22 years of age at sentence – and he did not commit his offences whilst on probation, but on the other hand he did commit 14 of his offences whilst he was on bail, he stole property of a significantly greater value (about $9,000) than that taken by the applicant, he caused damage to a school, and he committed his offences with a juvenile co-offender. Taylor had numerous previous convictions for possessing a dangerous drug and the Court characterised him, like the applicant, as a "recidivist offender". Also like the applicant, Taylor had made efforts at rehabilitating himself, perhaps with a somewhat greater degree of success than that of the applicant. Both Taylor and the applicant co-operated fully with police.

[16] Whilst, as the respondent’s counsel submitted, there are of course factual differences between the two cases, Taylor provides powerful support for the applicant’s contention that the sentences of three years imprisonment for the burglary offences were manifestly excessive.

[17] The respondent's counsel referred the Court to R v Bryant (2007) 173 A Crim R 88 at 91; [2007] QCA 247 at [11]. Jerrard JA there observed that the cases 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 [exceeding $20,000]". But the loss caused by the applicant was far less than $20,000, and Jerrard JA was not there referring to an offender of the youthfulness and with the limited criminal record of this applicant.

[18] R v Heath & Heath [1995] QCA 170 (in which the Court re-sentenced two brothers to terms of two years imprisonment and three years imprisonment for an offence of breaking and entering business premises with intent to commit an indictable offence) and R v Donald [2000] QCA 399 (in which this Court refused an application for leave to appeal against a head sentence of three years imprisonment for two offences of housebreaking, one of entering a dwelling, and other offences) both involved older offenders with much more serious criminal histories. Those cases do not support the submission made for the respondent that, although the three year head sentence is towards the upper end of the range, it is not outside the range of appropriate sentencing options.

[19] The respondent’s counsel submitted that a lengthy custodial period might be justified by the consideration that the applicant would benefit from having access to rehabilitation services in prison which (the submission assumed) otherwise would not be available to him. No such proposition was put to or adverted to by the sentencing judge and, even putting aside the submission’s lack of specificity and evidentiary support, it could not have justified the imposition of a more severe head sentence than the offences merited.

[20] Deterrence is an important feature in sentencing for offences of this character, but bearing in mind the particular circumstances of the burglary offences discussed above, the applicant's youthfulness at the time of his offending, his prospects of rehabilitation, and the relatively small amount of financial loss caused by all of his offending, in my respectful opinion the sentences of three years imprisonment were manifestly excessive.

[21] For that reason I consider it necessary to exercise the sentencing discretion afresh. If the applicant’s overall criminality is reflected in the sentences on the burglary counts, I consider that the appropriate head sentence is two years imprisonment, with lesser concurrent sentences imposed on the other counts.

[22] A relatively lengthy period of probation remains appropriate, in the hope that it will assist the applicant in his efforts to rehabilitate himself. For that purpose I would fix a parole release date after the applicant has served a period of eight months of a two year term of imprisonment for one of the burglary counts. Taking into account the six days the applicant spent in pre-sentence custody, the varied parole release date would be 23 April 2009. But, particularly because the applicant offended whilst he was on probation, personal deterrence is also important. As in Taylor, a partially suspended sentence for the other burglary count is appropriate for that purpose. The applicant’s counsel accepted that a sentence structured in this way was open in this Court and not inappropriate if it was necessary to re-sentence the applicant.

[23] I would not interfere with the lesser concurrent sentences for the other offences.

Orders

[24] I would grant leave to appeal and allow the appeal. I would vary the sentences as follows: (1) Set aside the sentences imposed in the District Court for the burglary offences in count 5 of indictment 156 of 2008 and count 3 in indictment 2149 of 2008 of three years imprisonment. (2) Order instead that, in respect of count 5 in indictment 156 of 2008, the appellant be sentenced to two years imprisonment to be suspended after serving eight months of that term for an operational period of three years; and in respect of count 3 in indictment 2149 of 2008 the appellant be sentenced to two years imprisonment. (3) Set aside the parole release date fixed by the sentencing judge and instead fix a parole release date on 23 April 2009. (4) Declare pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the six days spent in pre-sentence custody between 18 July 2007 and 23 July 2007 be deemed time already served under the sentence imposed in the District Court as varied by these orders. (5) Otherwise confirm the sentences imposed in the District Court.