R v McDowall [2005] QCA 260

SUPREME COURT OF QUEENSLAND

CITATION: R v McDowall [2005] QCA 260

PARTIES: R / v / McDOWALL, Paul Matthew / (applicant)

FILE NO/S: CA No 126 of 2005 / DC No 599 of 2005

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 26 July 2005

DELIVERED AT: Brisbane

HEARING DATE: 26 July 2005

JUDGES: McPherson, Williams and Keane JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: 1.Application for leave to appeal against sentence dismissed / 2.A warrant issue for the apprehension of the applicant, to lie in the registry for 24 hours

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 REFUSED – GENERALLY – where the applicant pleaded guilty to four counts of breaking, entering and stealing, two counts of receiving and one count of possessing things used in connection with unlawful entry – applicant sentenced to nine months imprisonment, suspended after serving one month with an operational period of two years – where applicant gave evidence against a drug supplier at committal proceedings – where one count of breaking, entering and stealing committed whilst on bail – whether sentence of short term of imprisonment manifestly excessive / R v Hamilton [2000] QCA 286; CA No 75 of 2000, 21 July 2000, distinguished / R v Harch [2004] QCA 113; CA No 45 of 2004, 14 April 2004, followed / R v Wickham & Anor [1998] QCA 168; CA No 454 and 455 of 1997, 25 February 1998, followed

COUNSEL: D J Walsh for the applicant / S G Bain for the respondent

SOLICITORS: Bernard Bradley and Associates for the applicant / Director of Public Prosecutions (Qld) for the respondent

WILLIAMS JA: On 17 May 2005 the applicant pleaded guilty in the District Court to four counts of breaking, entering and stealing, two of receiving and one of possessing things used for obtaining unlawful entry. He was sentenced to nine months’ imprisonment to be suspended after serving one month with an operational period of two years. He seeks leave to appeal against the sentence on the ground that it is manifestly excessive.

Particulars of the offences are as follows:

On 14 February 2004 the applicant broke and entered the premises of Acumen International Pty Ltd at Milton and stole a laptop valued at $900. Count 2 related to the break and enter of the premises of Euro Eyewear Pty Ltd at Albion on 28 March 2004. The door was smashed to obtain entry and the safe and its contents were stolen. $1,300 of cash was stolen, the safe was valued at $400 and there was $1000 damage to the door.

Counts 5 and 6 on the indictment related to events which occurred on 20 June 2004; then the applicant broke and entered the premises of Thrifty Car Rentals at Aspley and stole a safe which contained $75. He was apprehended by the police shortly after exiting from those premises. Implements were found in his possession which were used for the gaining of entry and that gave rise to that count on the indictment. The applicant was arrested and charged with the offences committed on 20 June 2004 and released on police bail.

The following day, 21 June 2004, not withstanding his recent arrest and release on bail, he committed Count 7. He broke and entered the premises of Pizza Capers Pty Ltd at Wilston and stole about $200 cash from the register, and some $130 damage was done to the door. Thereafter, on 30 June 2004 police conducted a search of the room in which the applicant resided and they there found some pharmaceutical drugs which the applicant knew had been stolen and also a mobile phone which he knew had been stolen. That gave rise to the two receiving counts.

It should be said that, thereafter, on what was described as a drive around interview, the applicant admitted to the commission of the break and enters of February and March 2004. Were it not for that admission the police would not have been able to link the applicant with those crimes. It also should be stated that the computer which was stolen from Acumen International was subsequently recovered.

So the seven offences were committed between 14 February 2004 and 21 June 2004 and as I have already indicated it is of real significance that the last count was committed whilst he was on bail. The applicant was aged between 23 and 24 at the time of the commission of the offences and was 25 when sentenced. He was therefore, as the learned sentencing judge said, "a mature man". He had no prior convictions. He was, of course, entitled to credit for the cooperation with the police with respect to Counts 1 and 2 on the indictment.

The learned sentencing judge was informed that the applicant did have a drug addiction which partly explained the commission of the offences in question. But it was said that it was not a serious addiction and he had reasonable prospects of rehabilitation.

Apparently he was drug free at the time he was sentenced. The applicant also was in full employment at the time of sentence, although apparently he had not been in full employment at the time the offences were committed. He had completed an apprenticeship as a plumber and it was in that capacity that he had been employed.

The experienced learned sentencing Judge referred to the prevalence of offences of this type and the need for deterrence, particularly in a situation where the applicant had re-offended after initial arrest.

The learned sentencing Judge was also informed that the applicant was an indemnified witness with respect to charges against a supplier of heroin. The applicant gave evidence against that supplier at committal proceedings.

The learned sentencing Judge was also told that the applicant made an offer to pay compensation in the total sum of $3,105 over 12 months. It was in those circumstances that the sentence referred to was imposed.

In this Court, counsel for the applicant relies on the decision in R v Hamilton [2000] QCA 286, in support of the proposition that there is little or no utility in a short term of imprisonment, such as one month, and that in consequence, the Court should conclude that the sentence in fact imposed was manifestly excessive.

In my view, R v Hamilton can be distinguished. The offender there, who was aged only 17 years at the time of the commission of the offence, was sentenced for an isolated offence. Here, as I have already indicated, there were seven offences in all committed over a period of about four months and they were relatively serious, two of them involving stealing the contents of a safe after breaking into the premises.

The sentence of one month imprisonment to be served has to be regarded in the light of the reasoning of the learned sentencing Judge.

The learned sentencing Judge considered that a sentence of 12 months' imprisonment was appropriate for the offences, given the circumstances in which they were committed; but that was moderated then to nine months, to take into account matters in favour of the applicant. It was then further reduced by the suspension of that sentence after one month. That was said, amongst other things, to give the applicant the benefit of his attempts at rehabilitation.

Counsel for the respondent referred the Court to the decision in R v Wickham & Anor [1998] QCA 168, which has been followed by this Court in R v Harch [2004] QCA 113.

The offence in R v Wickham & Anor was more serious so far as one of the accused persons was concerned. It involved a serious breach of trust and there was the stealing of a safe which contained some $18,000 in cash, most of which was not recovered. There, each of the offenders was sentenced to three years' imprisonment. One was aged 25 and one aged 23. They had no prior criminal history of any relevance.

That decision, whilst not all that helpful, does demonstrate that first offenders of comparable age to the applicant here, can be expected to receive a custodial sentence if the offence is a serious one.

The offender in R v Harch was aged 20 years and again the offence involved a breach of trust and stealing as a servant. He was given six months' imprisonment, to be followed by three years' probation.

In all of the circumstances, particularly given the fact that there was further offending after release on bail, I am not persuaded that there was any error in the exercise of the sentencing discretion, nor am I satisfied that the sentence in fact imposed was manifestly excessive. It follows that the application should be refused.

The applicant applied for and was granted bail on 18 May 2005 and is still on bail at the present time. In the circumstances, a warrant should issue for his apprehension. I would therefore dismiss the application for leave to appeal against sentence and order that a warrant issue for the apprehension of the applicant.

McPHERSON JA: I agree.

KEANE JA: I agree.

McPHERSON JA: The order is the application for leave to appeal is dismissed. I further order that a warrant for the apprehension of the applicant issue, to lie in the Registry for 24 hours.