Court of Appeal (Qld)|1998-02-25|Before: Pincus JA, Pherson JA, Fryberg J

R v Wickham & Wickham [1998] QCA 168 (25 February 1998)

PINCUS JA: These are two applications for leave to appeal against sentence relating to offences committed at Rockhampton in January 1997. Each of the applicants is young; Shane Wickham was 25 years of age when the offences were committed, and Glenn Wickham 23 years of age. Each of them pleaded guilty before His Honour Judge Nase to one offence of breaking, entering and stealing and another of breaking and entering with intent. Each was sentenced to three years imprisonment.

The basic challenges to the sentence are three: the offenders' youth, the fact that neither of them had any prior criminal history, and that they pleaded guilty. In the Court below the two offenders were represented by the same counsel. Here, each is represented separately, and Mr Farmer, who appears for Glenn, makes a special plea on his behalf that if one compares his circumstances with those of his elder brother it seems odd that the two received the same punishment. That is a subject to which I will return.

The first of the offences, each of which was committed by the applicants jointly, occurred on 13 January 1997 when Shane Wickham was dropped off at the rear of a Spotlight store at which he was employed as a security officer. Shane broke into the building, while Glenn and Shane's de facto wife Rachel Holt were in the car which had brought him there. The two groups were in communication by mobile phone. Shane's entry into the building set off security alarms. People came to search the building but did not find Shane, who was hiding in the ceiling. He took the opportunity to examine the alarm system in anticipation of a further entry.

It was suggested during the course of the hearing, and I agree, that a particularly reprehensible feature of the case against Shane was that he was in a position of trust; being employed to prevent persons from stealing from the property, he used, to some extent at least, his inside knowledge to do that very thing. It should be mentioned that his security job did not involve him with the alarm system I have mentioned; his function was to stop people from stealing during trading hours.

The entry of Shane on 13 January having produced no profit, the applicants returned to the store a few days later and on this occasion they took precautions to prevent the alarm system from working, by using sticky tape and other means. Goods on display were upturned, the office was broken into, two large holes were made in the wall and a safe which had been attached to the floor by a bolt was taken out. It contained sets of keys, gift vouchers and the sum of over $18,000 in cash.

A witness saw three people, apparently being these two applicants and Rachel Holt, loading the safe into a vehicle, and took down the registration number. It was Glenn's vehicle and so the police were able to connect the offence to Glenn. They went to his residence on the day when the offence was discovered. Apparently because Shane found out about the police interest in Glenn, he telephoned the police a little later and reported that the vehicle had been stolen on that day.

A police search discovered money and other items which seemed likely to be connected with the break-in at both Glenn's residence and Shane's, but both denied any involvement and continued to do so for some months. Glenn's car was found a little later, burnt out. It appears that not only these applicants, but also Rachel Holt, were said to be involved in the commission of the offences; according to the information placed before the primary judge, she accused Shane of having raped her and in consequence he was arrested in October 1997.

While in custody for the rape, Shane approached the police and told them about the break-in and later Glenn also made admissions. It is unclear why his having been arrested for rape led to Shane's change of mind about admitting the offences and the primary judge said it was not possible for him to resolve the issue of why Shane confessed.

I had mentioned that over $18,000 was taken from the safe. Only $1,000 was recovered and the safe was dumped into a creek. It was suggested below that some of the money was lost by the applicants to blackmailers.

Although the three factors I have mentioned, the youth of the offenders, the pleas of guilty and the absence of any criminal record, might have been expected to lead to a non-custodial sentence in other circumstances, the sophisticated nature of the break-in, the applicants' attempt to deceive the police, and for Shane, his position of trust, certainly justified a custodial sentence. The question is whether three years was an appropriate penalty for these, the applicants' first two offences. Both sides have referred us, by way of comparison, to a decision of this Court last year in Taylor and Leigep (judgment 28 May 1997, CA Nos 101 and 102 of 1997). Those two offenders, Taylor and Leigep, were deserving of greater punishment than these offenders. They broke into a restaurant, Taylor being possessed of a radio scanner tuned to the police wavelength. They were disturbed by a lady caretaker. Moynihan J, who delivered reasons with which the other members of the Court agreed, described the attempt as a professional one. The police pursued Taylor and Leigep and there was a vigorous struggle in the course of which one of the police officers was cut with a knife held by Taylor. A plea of guilty to unlawful wounding was accepted on the basis that the wound was negligently and not deliberately inflicted. It was said that a significant amount of property was taken. Both pleaded guilty, although as Moynihan J pointed out, they were in effect caught in the act. Each offender was 21 years of age, but both had significant criminal histories involving property offences. Each was sentenced to five years imprisonment in respect of breaking entering and stealing. Taylor got two years concurrent in respect of unlawful wounding and Leigep 18 months for resisting a police officer. On appeal, this Court reduced Taylor's sentence to three years, and Leigep's to two and a half years.

Another case which was referred to by the Crown is Heath, (judgment 12 May 1995, CA Nos 97 and 98 of 1995). There, two applicants had been sentenced below to four years imprisonment for breaking and entering with intent. They broke into a manufacturing business and were disturbed by a police patrol. Material was collected for removal when the patrol intervened, but there was no information as to its value. One of the applicants was 25 and the other 33 years of age. Each had a significant criminal history involving breaking and entering as well as stealing charges. Each pleaded guilty. Sentences of four years were held to be manifestly excessive, although each had a favourable parole recommendation. Ambrose J, who delivered reasons with which the other members of the Court substantially agreed, said it was desirable that recommendations for early eligibility for parole reflect adequately the advantage to be derived by persons who enter an early plea. One applicant was sentenced by this Court to two years imprisonment and the other, the older, to three years. The former was made eligible for parole after serving six months, and the latter after serving 12 months. The members of the Court other than Ambrose J, of whom I was one, expressed some reservation as to the question whether the sentence imposed on the older offender should be reduced.

These sentences, the ones to which I have just referred, seem to me to throw some doubt upon the correctness of the sentence imposed upon Glenn, at least. Shane is in a different position, both because it appears that he took a more leading part than Glenn in the offences, and because of the important factor which I have mentioned, that being employed as a security officer, he did precisely the opposite to that for which he was employed. Instead of preventing stealing, he became himself a thief. The operation has been described as sophisticated and to some degree it was.

My view is that the submission made by Mr Farmer should be accepted, and that made by Mr Collins on behalf of Shane should be rejected. That is, I would take the view that comparing the two cases, there was substantial reason for differentiating between them, and that the proper course would be to confirm Shane's sentence, but, as to Glenn, to grant the application to allow the appeal and reduce his sentence from three years to two years in respect of each of the offences.

R v Wickham & Wickham [1998] QCA 168

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Judgment (15 paragraphs)

R v Wickham & Wickham [1998] QCA 168 (25 February 1998)

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