R v Kucks [1996] QCA 57

Court of Appeal (Qld)|1996-01-26|Before: Dowsett J, Pincus JA, Davies JA, Pherson JA

The applicant was born on 12 July 1976. In April, May and June 1993 when he was 16 years of age the applicant committed nine offences of breaking and entering with intent and five of stealing. For these he was sentenced in the Magistrates Court to strict custody. There were other, lesser, subsequent offences which do not require specific mention.

From October 1993 until April 1994 the applicant committed further offences similar to those committed in April to June 1993. It should be noted that October 1993 was about three months after the date of sentencing in the Magistrates Court. During that period, from October 1993 to April 1994, there were about 35 offences committed - breaking and entering, entering with intent and stealing. There were not of course 35 separate incidents, because the stealing charges related to the break and enters.

When sentencing, Mr Justice Dowsett (on 15 July 1994) said in effect that he was extending to the applicant the benefit of some doubt about his future and His Honour assumed that there was still some prospect of the applicant's keeping away from an extended career of serious crime. His Honour warned the applicant that breaching the terms of the order would almost certainly mean further imprisonment, of two or three years at least.

The doubts expressed by Mr Justice Dowsett were justified because, while on probation ordered by His Honour, the applicant committed numerous further offences. These were committed from November 1994 till June 1995. There were 80 offences and the amount involved was about $16,000 or a little more. This was rather less than was involved in the offences before Mr Justice Dowsett; the total of those offences was said to be $33,000 or thereabouts.

The judge who heard the matter in the District Court had before him, as I have mentioned, 80 offences. They consisted of: 26 housebreakings, 15 of entering a dwelling with intent - one of those related to an entry in the night-time - one of attempted housebreaking and 38 of stealing.

The judge before whom the matter came on 31 October 1995 was Judge McGuire and His Honour was informed that the applicant had a drug habit, that he had certain difficulties in his childhood, as these sorts of people, I am afraid, commonly do. The facts placed before the judge indicated that the offences were committed without violence. The applicant tended to pick houses which were apparently in a condition in which they could be entered without breaking anything - that is, houses in which the occupants appear to be in the house or the garden, or both. The result was that although he could be described as preying on elderly people, Mr Rafter who appeared for the applicant today suggested that he was picking suitable physical targets rather than elderly people as victims.

The judge in the District Court sentenced, as I have mentioned, the applicant to six years' imprisonment with a two years non-parole period. There was 72 days' declared time served. There was also a recommendation for treatment for drug addiction.

The only complaint which is made by Mr Rafter is that the applicant might have been treated more leniently, in that perhaps he should have received a sentence of five years instead of six years, or a slightly more generous recommendation for parole.

Observation of the schedule of sentencing for similar offences both in the District Court and in this Court suggests that the sentence imposed is in the proper range. It is unnecessary to set out the details of comparable offences because it seems not to be contended by Mr Rafter, who is quite experienced in these sentencing matters, that the sentence is beyond the range. He simply says in effect that it is fairly stiff.

The only comment I wish to make upon the schedule is that the first case, that of Thompson, was one in which there were two elements of cooperation; the schedule suggests that there was only one element. The principal element of cooperation related to offences other than those committed by Thompson. That is, he gave substantial help to enable the police to catch others and for that the prima facie sentence of 20 years was reduced to 12. His other substantial cooperation, in relation to his own offences, got him a lesser discount, in reduction of the non-parole period from six years to four years. I mention that by the way, because otherwise the schedule might mislead people.

As I have said, the present sentence in the District Court seems to me to be within the range and there is no particular reason to interfere with it. I have read the record of the proceedings before Judge McGuire and His Honour's reasons. There does not seem to me to be any error which affected the sentencing process and I would dismiss that application.

The other application before us is that the Supreme Court was seized of the applicant's offences again; Mr Justice Lee had to deal with the applicant for breach of probation. His Honour apparently intended to extend the non-parole period by three months but because he was given the wrong non-parole date when the matter came before him, he did not quite achieve that. He extended the non-parole period by somewhat less than three months.

What was done in the Supreme Court was that the applicant was sentenced to an additional three years' imprisonment to be served concurrently with his District Court sentence and that of course had no effect on the ultimate head sentence. His Honour ordered, pursuant to section 157 of the Penalties and Sentences Act, that the applicant be eligible for parole on and after 31 October 1997.

No complaint is pressed in respect of the order made by

Mr Justice Lee in the Supreme Court and I think it unnecessary to discuss it further. The order which I would therefore propose is that the applicant's applications, that is both relating to the sentencing in the Supreme Court and that in the District Court, be refused.

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