Court of Appeal (Qld)|2007-07-12|Before: de Jersey CJ, Jerrard JA and Mullins J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
de Jersey CJ, Jerrard JA and Mullins J, Separate, reasons for judgment of each member of the Court, each concurring as to the
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 GRANTED
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED– GENERALLY – wherethe appellant pleaded guilty to 22 counts ofoffences of dishonesty – where 12 of the 22 offences were committed aftertheappellant had been released on bail after being arrested and charged withthe first 10 offences – where the total value ofproperty involved in allthe offences was $9,119 – where the appellant was aged 22 and in full timeemployment when sentenced– whether the sentence is manifestlyexcessiveR v Cummins [2004]QCA 350CA No 294 of 2004, 23 September 2004, distinguishedR vMcDowall [2005]QCA 260
CA No 126 of 2005, 26 July 2005, distinguished
R v
Pether [1990] CCA 77, distinguished
R v Smith [2000]
QCA 127
CA No 405 of 1999, 11 April 2004, distinguished
R v
Speechley & Attorney-General of Queensland [1995] QCA 38,
distinguished
R v Wickham & Wickham [1998] QCA 168, distinguished
R v Williams [2004]
QCA 27
CA No 2 of 2004, 16 February 2004, distinguished
Judgment (34 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
JERRARD JA: On 26th March 2007 Michael Taylor pleaded guilty to 22 counts of offences of dishonesty. The first 10 offences were committed over the two weeks between 4th February 2005 and 18th February 2005 and the other 12 offences between 22nd April and 13th May 2005 when Michael Taylor had been released on bail after being arrested and charged with the first 10 offences.
[3]
Indeed, he was actually arrested on 15th February 2005 after committing the first eight offences and released on bail and then arrested and charged on 25th February 2005 with the ninth and tenth counts committed after release on bail. Michael Taylor was sentenced on 26th March 2007 to three years' imprisonment on each of those 22 offences relating to property with sentences to be concurrent and the learned sentencing Judge fixed a parole release date of 26th March 2008. Mr Taylor has applied for leave to appeal against that sentence contending it is manifestly excessive.
[4]
Both sets of offences were committed with a juvenile co-offender but the co-offender involved in the second set of offences was different from the co-offender on the first. The total value of property involved in all the offences was $9,119. As described, 14 of the offences were committed while Mr Taylor was still on bail and his criminal history shows that he appeared in the Beaudesert Magistrates Court on 22nd February 2005 when he was fined for possessing a dangerous drug, that appearance being after the commission of the first 10 offences.
[5]
He then appeared in the Beenleigh Magistrates Court on 12th April 2005 and was fined for possessing a dangerous drug on 15th February 2005 but has since been committed during the set of the first 10 offences and the Court appearance being just before the start of the second lot of offending.
[6]
Finally, on 4th April 2006 he again appeared in the Beaudesert Magistrates Court when he pleaded guilty to possessing a dangerous drug on 22nd February 2006. That last offence of possession of drugs was committed when on bail for the 22 property charges.
[7]
Mr Taylor thus committed those property and drug offences when on bail and at that stage was a determinedly recidivist offender. The explanation for the offences was that he was then living away from home and unemployed and using non-prescribed drugs.
[8]
The first 10 offences consisted of either breaking, or attempting to break into, premises that included an aquatic centre, some small businesses and a school tuckshop. The other 12 offences involved Mr Taylor and another juvenile breaking into the office, classrooms, canteen, cleaner's room, garden shed and after-school area of the Jimboomba State School stealing property or doing damage to a total of $3,513.
[9]
He seems to have been arrested for those offences on the 1st of June 2005.
[10]
On his behalf it was submitted to the learned sentencing Judge that he had both nominated himself as a prime offender and had volunteered to the police his involvement in 20 of the 22 offences. He was aged 22 when sentenced and 20 when he offended and he was in full-time employment when sentenced.
[11]
His counsel submitted that he was charged with stealing things of a mundane nature, such as milk crates, food, scissors and the like, and his counsel told the learned sentencing Judge that Mr Taylor no longer associated with his juvenile co-offenders and for the past 18 months had been back living with his mother.
[12]
On this application Mr Moynihan SC submitted that those circumstances promoted Mr Taylor's prospects of rehabilitation as a young offender and that they were given inadequate weight by the learned sentencing Judge to have placed too great an emphasis on deterrence.
[13]
The learned Judge did remark that the offences Mr Taylor committed were extremely prevalent with the State of Queensland spending much money each year repairing damage and paying for loss associated with breaking and entering offences involving schools.
[14]
The applicant's counsel does not challenge the accuracy of those observations. The Judge expressly took into account this applicant's youth and generally limited criminal history, the plea of guilty and his co-operation with the police including his having volunteered his involvement in almost all offences which a Judge accepted was itself a sign of remorse.
[15]
The Judge also accepted the submission that Mr Taylor was relatively immature at the time of offending although older than his co-offenders. But the learned Judge considered that the necessity for general deterrence was a major consideration when sentencing for such offences and for that reason the Judge passed the sentences imposed.
[16]
Mr Moynihan SC contended that an appropriate sentence was in the order of 18 months' imprisonment suspended after four months. He relied in particular on the following decisions of this Court. In the R v. McDowall [2005] QCA 260 the Court dismissed an application for leave to appeal against a sentence of nine months' imprisonment suspended after one month imposed on a 25 year old applicant for similar offences relating to property committed over a three month period.
[17]
The last of those was committed when that offender had been released on bail and his offences were explained by reference to his then addiction to drugs and he was sentenced by the fact that he was drug free when sentenced.
[18]
He had also given evidence as an indemnified witness against a person who had supplied him with heroin, a matter that considerably distinguishes his position from Mr Taylor's. His offending was less persistent than Mr Taylor's and he was not assisted by a juvenile co-offender. His willingness to incriminate a supplier of drugs also explains why his sentence is significantly less than Mr Taylor's.
[19]
In the R v. Cummins [2004] QCA 350, that applicant had been pleaded guilty to 14 property offences and of common assault and has sought leave to appeal against a term of three months' imprisonment to be followed by two years' probation. The 14 property offences were related and occurred between July and August of 2003. Only a small amount of property involving a total value of $460 was taken or damaged.
[20]
That offender had a previous criminal record, was 20 when sentenced and committed the assault when on bail. His application was dismissed. That was a much more lenient sentence imposed on a much less persistent and a younger offender.
[21]
In the R v. Williams [2004] QCA 27, that offender pleaded guilty to the commission of 10 offences against property on which the last two were committed when she was released on bail after committing the first eight. She was sentenced to 18 months' imprisonment to be suspended after serving four months.
[22]
She had significant personal matters in mitigation but a majority of this Court upheld the sentence imposed but the different facts and circumstances in that case make it of little assistance in this one.
[23]
Mr Moynihan SC also referred to the R v. Ross [2000] QCA 49, where that then 18 year old offender committed about 30 property offences of which a fair number were committed when he was on bail for earlier offences. He had been drug addicted when offending.
[24]
This Court allowed his appeal and ordered that he be imprisoned for three months and then released on probation. That offender was significantly younger, had spent 93 days in pre-sentence custody before being granted bail and had been performing satisfactorily on probation since he was released on appeal bail. That decision of some but limited assistance to Mr Taylor.
[25]
Mr Moynihan SC also relied on the decision in the R v. Smith [2000] QCA 127 in which that fortunate applicant had a sentence of three months' imprisonment and three years' probation imposed in respect of 18 offences against property varied and in lieu thereof a term of imprisonment of 12 months ordered to be imposed by way of an intensive correction order.
[26]
That applicant's age does not appear from the reasons for judgment in that matter but reference was made in that judgment to submissions by his counsel based on his youth and the absence of any relevant criminal history, the fact that that applicant now had the support of his family and was in full-time employment. He was said to have offended because addicted to heroin. His sentence was lenient and this applicant does not argue for an intensive correction order in his matter.
[27]
Finally, Mr Moynihan SC relied on the R v Speechley & Attorney-General of Queensland [1995] QCA 38 where an Attorney-General's appeal against a fully suspended sentence of 12 months' imprisonment imposed on an offender who had committed eight offences with respect to property, six of breaking and entering, was dismissed.
[28]
That applicant was 25 years old and described as having a rather extensive criminal history and his good fortune when sentenced and on appeal is explained by the non-custodial sentences imposed on his co-offenders and the submission to the learned sentencing Judge in that same matter by the Prosecutor but because of those non-custodial sentences the Prosecutor could not argue for a custodial sentence for Mr Speechley. That is not the position here.
[29]
The respondent Director referred the Court to the R v Wickham & Wickham [1998] QCA 168 in which this Court reduced the sentence of three years to two years for a 23 year old first offender who, with his co-offender, his elder brother, had twice broken into a store at which his brother was employed as a security officer and had successfully stolen a safe containing $18,000 on the second occasion. Only $1,00 was recovered.
[30]
A three year sentence for the elder brother was upheld, he having abused the position of trust, and result in each case is of limited assistance here. That is simply because of the more professional nature of the theft involved there.
[31]
Also of limited assistance is the decision in the R v Pether [1990] QCA 77 in which a sentence of four years with parole recommended after 12 months was upheld in respect of an applicant who pleaded guilty to committing 28 offences of breaking into buildings. That applicant was only 18 and had been under the influence of an older relative. That applicant does appear to have committed a more serious variety of offences against property than Mr Taylor did.
[32]
Overall, the impression given by the cases to which both parties referred is that the head sentence in this matter, while acknowledging the necessity for general deterrence, was nevertheless a manifestly excessive one when regard is had to the applicant's own efforts at improvement after his arrest in mid-2006 and his more stable and law abiding life after his final release on bail.
[33]
Mr Taylor still needs a substantial personal deterrent and accordingly I would impose partly suspended sentences in respect of one lot of offending and order release on parole regarding the rest.
[34]
I would allow the application in the appeal, set aside the sentences imposed on the 26th of March 2007 and order instead that in respect of the 10 counts on indictment number 266 of 2006, Michael James Taylor 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 the 12 counts on indictment 265 of 2006 Mr Taylor on each to two years' imprisonment with a parole release date fixed at 26th November 2007.