Court of Appeal (Qld)|2000-08-18|Before: Pincus JA, Thomas JA, Ambrose J

The applicant's criminal history was relatively minor. It included offences of dishonesty dealt with in Court in October 1996, January 1997 and June 1998. These attracted sentences of probation, community service and fine. There were also a number of lesser offences. In October 1999, after these offences were committed, the applicant was sentenced to imprisonment for having breached the Bail Act.

In respect of various of the offences here in question the applicant was arrested on five occasions, and those arrests occurred between June 1998 and September 1999. Most of these offences were committed whilst the applicant was on bail and most were committed in shops. For example, the applicant would distract the shop assistants by placing an order and then pressing the "No Sale" button on the till to expose the cash. There were also some dwelling houses broken into.

"Now, you have made admissions in respect to a number of these offences, but it is clear that the police would have had a very strong case against you in respect of a large number of these offences where you were found in possession of stolen property or where you left your fingerprints at the scene of the offence."

Mr Moynihan argued, and it seems to me to be correct, that that overstates the position, so far as it appears from the record. It may be, as was suggested, that there was other information available supporting that but it seems to me unlikely that his Honour was relying upon anything other than what we have.

Counsel for the applicant who appeared below was asked by the Judge whether he disagreed with the prosecutor's submission that the proper range of sentencing was five to six years and he said he did not disagree. The Judge was informed that the applicant had family troubles as a result of which the family split up and the unfortunate family background was emphasised by Mr Moynihan in his argument to us today. Counsel informed the Judge that the applicant had ceased to take drugs while in prison. We were referred to a number of authorities, not all of which will be dealt with by me, but I propose to discuss some of them.

Mr Moynihan relied upon Davidson, CA No 210 of 1997,

7 August 1997. There a 30-year-old man challenged a sentence of four a half years imprisonment for a number of similar offences. The amount of money involved was about $30,000. He was effectively a first offender. According to the Court's view there was good cooperation with the police. The appeal was allowed to the extent of recommending eligibility for parole after 18 months. The sentence here is higher than that imposed in Davidson, but in my view Davidson's case does not show the sentence to have been too high, because there the offender committed a much smaller number of offences.

18 September 1998. There a sentence of four a half years imprisonment with a recommendation for release on parole after 15 months was upheld. The offences were of a rather similar character. There is also the similarity that Gee was a heroin addict. He was only 18 but he had a much worse criminal history than the applicant. The amount of property was less and the number of offences were fewer, yet it does not seem to me that Gee falsifies this sentence, because of the differences to which I have referred.

We were given Shearer which appears to be a case supporting

Mr Moynihan's contention. It is CA No 130 of 1996, 5 June 1996 and there were a large number of offences. There were 100 charges integrated into 52 counts; a sentence of four years of imprisonment was imposed with a recommendation for parole after serving 18 months. The offender was older in Shearer's case; the circumstances of the two cases make the six years imposed here seem to be at least at the high end of the range.

The Crown relies, among other authorities, on Kucks, CA Nos 470 and 515 of 1995, 26 January 1996. There the head sentence was six years with a recommendation for parole after two years. Kucks was an addict; there were numerous offences; there were perhaps not as many premises broken into as here; the offender was rather younger than this applicant is. Against that, he had been given a distinct opportunity of redeeming himself when he was sentenced to probation after 35 offences. He broke his probation by committing many other offences. When the matter came back after the breach of the probation the parole date was somewhat extended. The case on the whole makes the present sentence seem to be within the range.

In Robinson, CA No 534 of 1994, 24 March 1995, there were again numerous offences of a character somewhat similar to those in the present case. There the applicant was a little older and had a substantially worse criminal record. The sentence was seven and a half years with a recommendation for parole after two and a half years. There was considerable cooperation with the police. The application for leave to appeal against sentence was refused.

Although I have found Mr Moynihan's argument to the contrary impressive and persuasive, in the end it is my opinion that the sentences imposed here were within range. Obviously a substantial penalty was called for. If the Judge had made an earlier recommendation for parole, then presumably the applicant, if appearing to be drug free in prison, would have been able to test the extent of his rehabilitation in the wider community at an earlier date. But it seems to me to be impossible to say that either the six year sentence or the parole recommendation represents a penalty which is beyond the range of a proper exercise of judicial discretion. My inclination is to think that if the matter had of come before me at first instance I would have imposed a rather lesser penalty, but I am far from thinking that one can characterise the sentence that the Judge imposed as manifestly excessive.

If all goes well for the applicant and he leaves prison at or about the time of the parole recommendation he will not, as it appears to me, have suffered excessively for his very persistent offending. I would for these reasons refuse the application.

THOMAS JA: In my view the learned sentencing Judge's remarks reveal a misapprehension. His Honour referred to the admissions that the applicant made to the police in relation to the very considerable number of offences and then stated:

"But it is clear the police would have had a very strong case against you in respect of a large number of these offences where you were found in possession of stolen property or where you left your fingerprints at the scene of the offence."

The details presented to the Court were rather sparse and the prosecution might clearly be described as a broad brush prosecution in which 115 cases were able to be wound up.

Mr Moynihan for the applicant submits that so far as the record indicates the police only had fingerprint evidence in relation to five of the offences and that although the applicant was located at the scene on a number of occasions the number of times when this happened does not appear to have been great or to justify any positive finding of the impression that the learned Judge expressed.

It therefore seems to me that his Honour denigrated the value of the pleas and the cooperation without a sufficient basis. Indeed a statement made by defence counsel below which was not contradicted includes the following statements:

"The state has been saved the trouble of a long trial or trials and also by virtue of the cooperation which my client extended to the police he is now being sentenced on a number of offences and I don't know how many which might have escaped detention or which would have remained unsolved and that is thanks to his cooperation."

When I come to consider the effect of this apparent misapprehension against the remainder of the circumstances in the case the following matters seem relevant. Firstly the cases to which we have been referred and in particular Sherer, CA 130 of 1996, 5 June 1996 and Robinson, CA 534 of 1994, 24 March 1995 tend to suggest that the head sentence imposed was at the top of the available range. The only benefit that the applicant seems to have been given is a reduction of the period for consideration of parole from the half way mark of three years to two and a quarter years. It is hard to tell why two and a quarter was selected. Two would have been more in conformity with the cases to which reference has been made. In any event it seems to me that too little benefit has in fact been given for the plea and for the cooperation which allowed as many charges to be brought as had been brought.

Secondly, there is the youth of the offender. He was 20 to 21 at the relevant times and his unusually pronounced dysfunctional background all tend to suggest that the sentence was, if not at the top of the range, possibly beyond it when all factors are considered. It might often be thought that the alteration of a sentence by altering the recommendation period for parole by a short period amounts to tinkering by this Court. However what I propose seems to me to be the correction of an apparent misreading of the evidence by the learned sentencing Judge and the allowance of an appropriate discount for his cooperation.

I would accordingly grant leave to appeal, allow it, and vary the sentence by reducing the recommended parole consideration period from two and a quarter years to two years.

AMBROSE J: Yes, I have nothing to add with respect to the facts outlined by Justice Pincus. The real question comes down to whether it could be said that the sentence actually imposed was manifestly excessive because the eligibility period was fixed at two years and three months rather than at two years. Both counsel on the sentence agreed that the appropriate range was from five to six years. Counsel for the Crown made no submissions with respect to an eligibility period. Counsel for the applicant requested that the period be fixed at a period of two years. In my view with respect to Justice Thomas I think the reduction of the eligibility period from two years and three months to two years would be tinkering and I would on that basis not interfere with that recommendation and I would refuse application for leave.

PINCUS JA: The order of the Court is application refused.

THE QUEEN v STEVEN MATTHEW PERREM [2000] QCA 339 (18 August 2000)

THE QUEEN v STEVEN MATTHEW PERREM [2000] QCA 339

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THE QUEEN v STEVEN MATTHEW PERREM [2000] QCA 339 (18 August 2000)