R v Josey; ex parte A-G(Qld) [2003] QCA 44

[1]

Director of Public Prosecutions (Queensland) for the applicant

[2]

THE PRESIDENT: The application for extension of time to apply for leave to appeal against sentence has been abandoned and is struck out.

[3]

THE PRESIDENT: The appellant pleaded guilty on the 11th of December 2002 in the Brisbane District Court to a large number of property offences contained in two ex-officio indictments and a schedule of offences under s 189 of the Penalties and Sentences Act 1992 (Qld).

[4]

The two count indictment included the offences of entering a dwelling and stealing and unlawful use of a motor vehicle. The 16 count indictment contained one count of attempted entering premises with intent; seven counts of entering a dwelling and committing an indictable offence; two counts of unlawful use of a motor vehicle; two counts of stealing; one count of escaping lawful custody; one count of destroying evidence; and two counts of fraud.

[5]

The section 189 schedule related to 52 counts of burglary, burglary and steal or housebreaking and steal; two counts of unlawful entry of a motor vehicle; 22 counts of stealing;

[6]

3 counts of fraud; 34 counts of entering a dwelling and stealing; entering a dwelling and committing an indictable offence or entering a dwelling with intent; two counts of attempted fraud; ten counts of entering a premises with intent, entering premises and stealing or breaking and entering a premises and stealing; and four counts of receiving.

[7]

All these offences occurred between August 1999 and October 2000 also.

[8]

to 12 months' imprisonment for the offence of destroying evidence and all remaining counts to five years' imprisonment suspended after two years and six months with an operational period of five years. Her Honour declared under s 161 of the Penalties and Sentences Act 1992 (Qld) that 797 days spent in presentence custody be deemed time already served under the sentence.

[9]

The appellant, the Attorney-General of Queensland, contends the sentence imposed was manifestly inadequate in that it fails to reflect adequately the gravity of the offences, to take sufficiently into account general deterrence, and that the learned sentencing Judge gave too much weight to factors of mitigation, especially as to the respondent's cooperation with authorities.

[10]

In total the respondent committed 153 offences over 14 months with a loss to victims of almost $180,000. He was 17 and 18 years old when he committed the offences and 21 at sentence. Many of the offences were committed whilst he was on bail and one whilst he was subject to a juvenile probation order.

[11]

After his remand in custody on 5 October 2000, he accompanied police in a police vehicle during the course of a record of interview and pointed out premises and dwellings where he had committed offences. This cooperation was commendable but, at about 8.54 p.m., police pulled into a service station in East Brisbane to refuel. Such was their confidence in the respondent that they left him alone in the car with the car keys. Such confidence was unfortunately ill-founded and the respondent drove off in the police vehicle which was located the next day at Kangaroo Point. The tape recorder and tape that had been used in the interview had been removed. It is this conduct that constitutes the offence of escaping from lawful custody.

[12]

The respondent was detained by police two days later on 8 October 2000 and further interviewed, this time in a more cautious fashion. He made full admissions that he unlawfully used the police vehicle, stole the tape-recorder and destroyed it and committed two further house breakings. He continued to cooperate with the authorities, making admissions to other offences and repeating the admissions which he had made prior to absconding.

[13]

The Prosecutor at sentence contended that the appropriate penalty for this offence was imprisonment for nine or ten years.

[14]

The respondent's counsel at sentence emphasised that the interviewing police initially suggested he may be an appropriate candidate for the Drug Court. The respondent was a severe heroin addict and the temptation to take the opportunity to escape in the police vehicle and obtain heroin was too great. He had been in custody for only a short period and was withdrawing from heroin at this time. Counsel emphasised that after his apprehension, less than two days later, he again fully cooperated with police and implicated himself in most of the matters presently before this Court. His admissions were the sole evidence against him in respect of many of these matters.

[15]

The respondent had a dysfunctional background. His parents separated on occasions during his childhood and his father worked away from home for long periods. His mother had a history of mental instability and attempted suicide on three occasions when the respondent was present.

[16]

The delay in sentence was because the respondent hoped to be dealt with in the Drug Court. This was not ultimately possible because of the seriousness of these offences, which warranted heavier penalties than those available in the Drug Court. The maximum penalty for a large number of these offences is life imprisonment.

[17]

The respondent had a significant criminal history for offences of dishonesty commencing when he was a child, in 1997. He was initially sentenced to non-custodial community based orders, but later in 1997 was sentenced to three months' detention for taking a motorcycle without consent. He committed further property offences during 1998 for which he was sentenced to probation and community service under the Juvenile Justice Act 1992 (Qld). That probation expired on 18 August 1999 and one of these offences was committed during that probation period just a few days before its expiry. As an adult he has convictions for street offences, receiving, breach of a fine option order, stealing and a certificate of caution for entering premises and committing an indictable offence, all of which occurred during the juvenile probation order. He had not previously been sentenced to a term of adult imprisonment or adult probation.

[18]

The respondent had the support of his parents and his mother attended Court. She provided a letter to the Judge indicating that the respondent would be able to reside in the family home on his release from prison and intended to attend Narcotics Anonymous meetings and undergo drug counselling. He had prospects of employment and she believed was demonstrating a willingness to rehabilitate.

[19]

Whilst in prison, the respondent was awarded an attendance certificate from Narcotics Anonymous. Father Kevin Ryan, chaplain at the Arthur Gorrie Correctional Centre, provided a reference to the effect that he was concerned that the respondent, having spent such a lengthy period in prison as a young man, was becoming institutionalised.

[20]

The learned sentencing Judge accepted the submission made by the respondent's counsel at sentence, that the respondent had been drug-free whilst in prison, a submission supported by a large number of urine analysis certificates indicating negative results to drugs.

[21]

Defence counsel submitted that the authorities demonstrated that these offences warranted a sentence of six to seven years' imprisonment, but the respondent's youth, plea of guilty and cooperation justified a head sentence of five years' imprisonment, suspended after serving two years and two months' imprisonment, the time already served at that point.

[22]

Defence counsel contended that the conviction for escaping lawful custody had the effect that any recommendation for parole would be meaningless. Her Honour adjourned the sentence until the next day to enable counsel to prepare further submissions on this point, but ultimately, this matter was not positively established.

[23]

It should be noted, however, that the prosecutor submitted that observations made by Justice Jerrard in R v. Kunst [2002] QCA 400, CA No 120 of 2002, 4 October 2002, paragraph 16, meant that it was inappropriate for a sentencing Judge to suspend a sentence instead of giving a recommendation for parole. Kunst applied for leave to appeal against his sentence and requested that his recommendation for parole be replaced by an order suspending his sentence at the same period. Because of his apprehension, that parole would not be granted to him on the basis of his re-offending history, I do not understand his Honour's observations in Kunst at paragraph 16 to be any more than a statement that a parole recommendation rather than a suspended sentence at the same point is not an appropriate reason to conclude that the sentence imposed, which includes the parole recommendation, was manifestly excessive. The question there was simply whether the sentence imposed on Kunst was one within the proper range. That seems also to be the effect of McPherson JA's reasons in paragraph 1. The third member of the Court, Justice Wilson, agreed with both McPherson JA and Jerrard JA.

[24]

The learned sentencing Judge properly distinguished the cases of Burrowes, CA No 376 of 1989, R v. Kavanagh [1993] QCA 159, CA No 64 of 1993, 5 April 1993, R v. Barnes [1993] QCA 529,

[25]

CA No 296 of 1993, 10 November 1993, and R v. Robinson [1995] QCA 131, CA No 534 of 1994, 24 March 1995, in which sentences from nine and a half years' to seven years' imprisonment were imposed, sometimes with recommendation for parole as early as two and a half years. This respondent, as her Honour noted, was younger than the offenders in those matters and had not previously been sentenced to adult probation or to a term of imprisonment as an adult. Her Honour also observed that this respondent's offending did not involve violence. Similar observations can be made about the matter of R v. Savo [1994] QCA 513, CA No 334 of 1994, 25 October 1994, upon which the appellant now relies in this appeal.

[26]

The learned primary Judge referred extensively to the case of R v. Whelan [1998] QCA 151, CA No 430 of 1997, 17 March 1998. Whelan pleaded guilty to 42 property offences involving unrecovered property of $160,000. She was apprehended as a result of fingerprint evidence and then admitted to a large number of offences committed to support her drug habit. In one of the homes broken into, excrement was left throughout the house. She was 29 years old, entered an early plea of guilty, and had three young children in her care. Most of her offences were committed whilst she was on bail or subject to an adult probation order. She had a substantial criminal history for similar types of offences dating back to 1994. She was originally sentenced to nine years' imprisonment with a recommendation for parole after three years. On appeal, the sentence was reduced to seven years' imprisonment with a recommendation for parole after three years.

[27]

Her Honour rightly observed that significant weight should be given to the important factors of the respondent's plea of guilty and cooperation with the authorities and his youthfulness at the time of the commission of these offences. Her Honour determined that the appropriate head sentence without any mitigation was, in this case, seven years. A mitigating plea of guilty could be reflected in a recommendation for parole after two years and four months, but in addition, credit must be given for the significant cooperation and the respondent's youthfulness.

[28]

Her Honour determined that the appropriate penalty was to reduce the head sentence to five years' imprisonment and to suspend that after two and a half years. Although her Honour noted that the rehabilitation of heroin addicts was often assisted by supervision on parole, the respondent had already considerably rehabilitated himself whilst in prison, he has family support and intends to attend Narcotics Anonymous. In those circumstances, she concluded an order suspending the sentence rather than a recommendation for parole at an even earlier time was appropriate.

[29]

The appellant here emphasises that the respondent's cooperation with the authorities is diminished by his escaping from lawful custody and destroying evidence and committing further offences and in the circumstances, any remorse was minimal.

[30]

This submission understates, in my view, the hideous effect of heroin addiction such as was plainly suffered by the respondent. His desire to cooperate with the authorities can be seen in his subsequent very substantial assistance given to police, including fresh admissions about the matters to which he had earlier confessed in tape-recorded admissions but which he then destroyed.

[31]

The appellant also contends that the plea of guilty was not early, but it is common ground that the appellant expected the respondent to plead guilty because of his cooperation with the authorities, but that the respondent was hoping to do so in the Drug Court. That was the reason for the delay, not a wish by the respondent to contest these matters and go to trial.

[32]

In the circumstances, the respondent should be given full benefit of an early plea of guilty. He proceeded by way of ex officio indictment and section 189 schedule.

[33]

Whelan supports the sentence imposed here in that this offender was more youthful than Whelan when he committed the offences and had not been sentenced as an adult to probation or imprisonment for like offences. He also had good rehabilitative prospects.

[34]

The learned primary Judge had obviously considered a sentence of seven years' imprisonment with a recommendation for parole after two years and four months, but instead, because of the additional mitigating factors not present in Whelan, elected to reduce the head sentence and to impose a sentence of five years' imprisonment. That sentence, for the reason I have given, was within the appropriate range.

[35]

In addition, the learned Judge suspended the sentence after two years and six months, the period at which the respondent would have been eligible for parole. The reason for so doing may have been her Honour's concern that because of his conviction for the offence of escaping from lawful custody, the respondent may not be paroled at or about that time.

[36]

The effect of a suspended sentence means that if the respondent offends during the five year operational period, he will be required to show cause why the unserved portion of the suspended sentence should not then be served as imprisonment. He may also be subject to a cumulative penalty for his subsequent offending.

[37]

Although the sentence is perhaps unusual, once it is clear (as it is) that the five year head sentence was within range, I am not persuaded that an order suspending that sentence at the halfway point, rather than making a recommendation for parole at that point or perhaps slightly earlier, is manifestly inadequate.

[38]

I would refuse the application for leave to appeal against sentence.

[39]

JERRARD JA: I agree and add that I agree with the President's analysis of the remarks by myself in the matter of Kunst. I add further that the learned sentencing Judge considered and analysed with care a number of earlier decisions of this Court, including those in the matters of Burrowes, number 376 of 1989, Kavanagh, number 64 of 1993, Barnes, number 296 of 1993, Robinson, number 534 of 1994, and Whelan, number 430 of 1997.

[40]

Having done so she rejected the submissions then made by the prosecution that the appropriate head sentence was in the range of nine to ten years. In this Court the appellant no longer makes that submission and instead argues for a head sentence in the order of seven years and appears to support the imposition of a recommendation for parole after two and a half years imprisonment has been served. That actually accords with the sentence considered by the learned Judge, namely of seven years with parole recommended after serving 28 months.

[41]

However, the learned sentencing Judge, having described why she had reached that result, which appears to be indistinguishable from that the appellant now supports, then described two further matters. One was the age of the respondent when offending, namely 17 years, and the other the matters which appear at page 29 of the record. These are:

[42]

"In your case, however, as bad as your addiction was you have been in gaol for two years and two months. I am told that you have remained drug free and your counsel has assured me that he has a number of urine analysis certificates indicating that you have been drug free. I have said before in Court and I will say again I am impressed by such certificates because I know that drugs are available in the prison and I know that to get on the program where you get the certificates you have to volunteer to go into a drug free unit."

[43]

That matter was one which the learned Judge rightly treated as of significance and it is not a feature which appears in any of the comparative cases to which her Honour was referred, particularly those of Barnes, Robinson and Whelan, and which would have supported the seven year head sentence for which the Attorney now argues. In those circumstances the learned Judge was making a decision well within the range of appropriate discretionary decisions in determining that she would impose a sentence of five years imprisonment suspended after two and a half years.

[44]

THE PRESIDENT: The order is the appeal is dismissed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (44 paragraphs)

Parties

Legislation Cited (2)