R v Muscat [2005] QCA 129

Court of Appeal (Qld)|2005-04-29|Before: Jerrard JA, Cullinane and Jones JJSeparate reasons, for judgment of each member of the Court, each concurring as to the order made

[1] JERRARD JA: In this application I have read the reasons for judgment of Cullinane J and respectfully agree with those and the order His Honour proposes. I add that the history of the applicant's offending behaviour suggests that on more than one occasion his co-operation with the police, which his counsel urged that the learned sentencing judge failed to take sufficiently into account, resulted in the applicant being released on bail, whereupon he further offended. There was perhaps therefore a degree of self interest in that co-operation; the learned judge gave it appropriate consideration.

[2] CULLINANE J: The applicant seeks leave to appeal against sentences imposed upon him in respect of some 54 offences to which he pleaded guilty on an ex officio indictment in the District Court in Mackay on 24 November 2004 and some 10 summary offences which were also dealt with at that time.

[3] The indictable offences to which he pleaded guilty were;

(m) 1 x break and enter dwelling and commit offence

[4] The effective sentences in respect of which he seeks leave to appeal are terms of five years with a recommendation that he be eligible to be considered for parole after a period of two years. The offences for which these sentences were imposed were:

(a) one count of attempted entering premises and stealing

(d) two counts of entering premises with intent to cause damage

(f) one count of break and entering a dwelling and committing an offence

(g) three counts of breaking and entering dwelling with intent

[5] The offences were committed over a period between 1 June 2003 and 25 March 2004 at Mackay. The value of the property involved was a little over $50,000. Many of the items, such as computers, were taken from businesses whose premises were entered, and would have undoubtedly had a disruptive effect on those businesses. In other instances, cheque books and credit cards were stolen and these were subsequently used and were the basis of further offences to which the applicant pleaded guilty.

[6] The applicant was born on 30 October 1969 and was 35 years old at the time of sentence.

[7] He had a criminal history which included a number of offences of dishonesty. He was convicted on 12 June 1997 in the Mackay District Court of breaking and entering a dwelling house with intent and stealing and released on a good behaviour bond. He was convicted of four counts of stealing at Mackay Magistrates Court on 20 October 2000 and was fined. On 8 September 2003 he was fined for an offence of unauthorised dealing with shop goods.

[8] His criminal history, while significant, cannot be regarded as extensive. He had not previously been sentenced to a term of imprisonment. A particularly serious feature of his conduct in respect of these matters was that on no less than nine occasions between the first and the last of these offences he was released on bail and continued offending. The learned sentencing judge said, in the course of passing sentence, that the Courts take a very serious view of people who commit offences whilst on bail pointing out that all of the offences in this case from count 21 onwards were committed whilst he was on bail.

[9] It is contended on behalf of the applicant that insufficient allowance has been made in this case for the plea of guilty on an ex officio indictment and for the co-operation of the applicant with the police. Many of the offences, it is said, were offences that he informed the police of and of which they would not otherwise have been aware. He took part in a drive-around in which he pointed out premises that he had broken into.

[10] It was said that a head sentence of five years was excessive in the light of judgments of this Court dealing with a substantial number of property offences and that the recommendation that the applicant be eligible for release after two years did not adequately allow for the factors to be taken into account in his favour.

[11] The applicant at the time, it appears, had a drug habit as did his partner and these offences were committed to feed those habits.

[12] Plainly the commission of such a large number of offences over the period involved here involves very serious criminal conduct. Similarly, the continuation of such conduct while on bail adds a serious dimension to the applicant's criminality.

[13] Whilst it may be accepted that he co-operated with the police and brought to their attention offences that they would otherwise not have been aware of, this cannot be taken too far. A schedule which appears in the record shows that in relation to a number of the offences he refused to be interviewed by the police. It is also noteworthy that in the case of count 47 (enter dwelling and commit an offence) immediately after he left court on another of the matters that he was charged with he picked up a co-offender and they drove to a residence which they entered and from which they stole.

[14] We were referred to a number of cases involving a substantial number of property offences which bear similarity to the circumstances of this case in which, on the one hand, sentences of four or four and a half years were imposed (see R v Smerdon [1996] QCA 444, CA No 258 of 1996, 12 November 1996 and R v Shearer [1996] QCA 213, CA No 130 of 1996, 5 June 1996) and in which, on the other hand, sentences of more than five years were imposed (R v Perrem [2000] QCA 339, CA No 119 of 2000, 18 August 2000, R v Kucks [1996] QCA 57, CA Nos 470 and 515 of 1995, 26 January 1996 and R v Robinson [1995] QCA 131, CA No 534 of 1994, 24 March 1995).

[15] I am not convinced in the light of the cases to which we have been referred and the serious criminality involved in the commission of these offences, particularly the continued offending after being released on bail, that a sentence of five years with a recommendation that the applicant be eligible to be released after a period of two years, can be regarded as manifestly excessive.

[17] JONES J: I agree with the reasons of and the order proposed by Cullinane J.

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