- Unreported Judgment
- Appeal Determined (QCA)
 QCA 85
COURT OF APPEAL
CA No 291 of 2018
DC No 2495 of 2018
DC No 2501 of 2018
DC No 2528 of 2018
DC No 267 of 2017
DC No 1702 of 2016
CARRINGTON, Tani Tremaine Applicant
THURSDAY, 16 MAY 2019
McMURDO JA: On 9 November 2018, the applicant was sentenced to various terms of imprisonment for offences charged on three indictments, as well as for some summary offences. The outcome was a period of imprisonment of five and a half years with an immediate eligibility for parole. However, by the date of his sentence, he had been in pre-sentence custody for a total of 871 days or two years and nearly five months.
Apart from the summary charges, for which he was convicted but not further punished, the offences fell into three groups. There was an offence of deprivation of liberty, which was committed in 2014, for which he was sentenced to a term of three years. That is the maximum punishment for such an offence under s 355 of the Criminal Code, although the applicant pleaded guilty to this and each other offence for which he was then sentenced.
Next there was a group of dishonesty offences. There was an offence of stealing, another of receiving tainted property and a third of fraud, for which he was sentenced to terms of two and a half years, 18 months and two years respectively. The term of two and a half years on the stealing count was ordered to be served cumulatively upon the term of three years on the count of deprivation of liberty. The third category involved drug offences. There were five counts of the supply of a dangerous drug, for which he was sentenced, on each charge, to 18 months imprisonment. There were two counts of possession of a dangerous drug, for which he was sentenced, on each count, to a term of six months.
The applicant applies for leave to appeal against these sentences upon the stated ground the sentence in the circumstances is manifestly excessive. As his argument was developed, the applicant made more particular criticisms. He argued that there was a disparity between his sentence of three years and that of the term of two and a-half years imposed at the same time on a co-offender, Mr Cruz. Similarly, he argued that his sentence of two and a half years, to be served cumulatively upon the three-year term, had a disparity with the sentence received by his co-offender in that case, Ms Hall, which was a term of two and a half years but with release after about 10 months of pre-sentence custody. Further he argued that the sentencing judge did not consider other periods, totalling 75 days, which he had spent in custody serving sentences in relation to other matters in 2016. And he argued that the judge failed to give due allowance for his pleas of guilty.
The offence of deprivation of liberty was committed in this way. The applicant, Mr Cruz and others held a man, depriving him of his liberty, for a period approaching 48 hours, during which they threatened him with violence and inflicted some actual violence upon him to persuade him to pay a drug debt. The threats came from another man in the group, who threatened the complainant with a knife and a gun. Mr Cruz and Mr Carrington (the applicant), each applied some physical violence by punching the complainant. Eventually, the complainant managed to escape. And there was no indication that he sought any medical treatment for any injury. Those facts were set out in a schedule of agreed facts which was tendered at the hearing at which the applicant and Mr Cruz were sentenced.
The prosecutor told the sentencing judge that this was a “particularly serious example of an offence of this type”. Even if that is accepted, it cannot be said, and the prosecutor did not suggest to the judge, that this was in the category of the most serious examples of the offence. Her Honour was reminded that the maximum penalty for the offence was one of three years’ imprisonment, and the prosecutor’s submission was that she might consider a term in the order of two to three years for each offender.
The facts of the dishonesty offences were as follows. The applicant and Ms Hall targeted apartment buildings in Brisbane, gaining access to locked mailboxes to obtain items such as debit and credit cards and other items containing personal identification. In one case, there was a set of keys to an apartment block which was stolen. A total of nearly $6,000 was obtained by them from the use of fraudulent transactions on stolen cards. The co-offender, Ms Hall, pleaded guilty in the Magistrates Court, where she was sentenced. The charges which she faced were not identical to those against the applicant. But the prosecutor here accepted that the sentence which she received was relevant to that which the applicant should receive. Ms Hall had a limited criminal history, although one which did include previous offences of dishonesty.
The prosecutor’s ultimate submission to the sentencing judge was that she might consider that to reflect the applicant’s overall criminality, “a sentence” – meaning a period of imprisonment – of the order of five years would be appropriate. The prosecutor submitted that her Honour could take into account the lengthy period of pre-sentence custody such that the applicant “would either be eligible for release or be released today or shortly after”.
During the course of submissions to the judge by the applicant’s counsel, her Honour expressed scepticism about the applicant’s plea of guilty to the deprivation of liberty count, coming as it did only a couple of weeks before a scheduled trial. Counsel explained to her Honour that until then, the applicant had been charged with other serious offences arising out of the events in which the man had been detained, and that it was after the prosecutor had reviewed the case, and the Crown had decided not to proceed on those charges, that the plea of guilty was offered. Her Honour considered that the plea of guilty should have been offered much earlier.
Mr Cruz was sentenced first. He was then aged 33 and had, as the judge observed, “a history for drug and property offending”, including “an old conviction for assault occasioning bodily harm”. Her Honour noted that he had been in custody for the past two years and three months, but 14 months of that related to other offending. The judge said that:
“There are issues of parity to be considered. Comparing your role to the role of Mr Carrington, you had greater involvement in the actual depriving the complainant of his liberty. On the other hand, you do not have the same criminal history as Mr Carrington, nor the other current charges reflecting his further involvement with drugs and dishonesty.”
The judge sentenced Mr Cruz to imprisonment for two and a half years, declaring 529 days of pre-sentence custody. And his sentence was immediately suspended, with an operational period of four years.
Her Honour then sentenced the applicant. She referred to his personal history, leaving home at the age of 13 and being introduced to heroin within a year. She said that there was a history of drug-induced psychosis, a substance abuse order as well as an antisocial personality disorder. Drugs had become an entrenched part of his lifestyle, the judge said. He was only 25 or 26 at the time of the offending. But he had a “bad criminal history”, having been convicted of nine armed robberies in 2009. The judge discussed the facts of his dishonesty offences and remarked on these charges that his cooperation was “substantial”, whereas on the deprivation of liberty:
“There was no real cooperation with the investigation.”
Her Honour said that the applicant and his co-offender on the dishonesty charges seemed to have been “equal participants”, but that she had had a limited criminal history, with better prospects of rehabilitation and with less need for personal deterrence. The judge said that the principle of totality meant that the aggregation of sentences in his case had to be “just and appropriate”. She said that when released, the applicant should be under “some form of real supervision, given the seriousness of your offending and your history”. Her Honour then said:
“That means parole. I will reduce the head sentence rather than free you from the restraints of parole and an eligibility date.”
Her Honour said that she was doing that to allow for the mitigating factors of “the plea of guilty and the cooperation in respect of the fraud”.
However, the head sentence for the offence of deprivation of liberty was not reduced. The maximum permitted by law was three years, and it was that term which was imposed. Further, no reasonable basis for the imposition of the maximum term was identified by the judge. As I have said, it was not suggested by the prosecutor, and not found by the judge, that this was the most serious type of case for the offence of deprivation of liberty. Remarkably, the applicant received a higher sentence than his co-offender, Mr Cruz, notwithstanding the judge’s finding that the applicant had a lesser involvement.
The judge appears to have reasoned that Cruz should receive a lower penalty because of a less serious criminal history and the fact that Cruz was not being sentenced on other charges. The judge therefore seems to have used the applicant’s other offences as justification for imposing a higher sentence upon the applicant than that upon Cruz, notwithstanding that the applicant was to be separately punished for those other offences and, indeed, received a cumulative term for one of them.
It was suggested in the respondent’s argument that the judge imposed a sentence of three years to allow for the fact that the terms for the drug offences were made concurrent, according to the approach in R v Nagy  1 Qd R 63. However, that was not the judge’s reasoning. And it is at least doubtful that the drug offence sentences could have been accumulated with the other sentences consistently with the totality principle.
The effect of these sentences ordered against the applicant was that a period of five and a half years was imposed, with parole eligibility after about 43 per cent of that period. In my opinion, the term imposed for the deprivation of liberty count was manifestly excessive. The maximum term permitted by law cannot be justified in this case, when there was a plea of guilty, a markedly lower sentence imposed on a more culpable co-offender and no significant reduction on the time to be served before eligibility for parole. For that reason, leave to appeal should be given, and the applicant should be resentenced.
The applicant has remained in custody since 9 November 2018, amounting to another 188 days. In total, he has been in prison for his offences for a total of 1,059 days or 2.9 years. Orders should be made for his immediate release, but under supervision. All but about a month of his three year term has been served. I would reduce that term so that it expires today. All of the other terms have been served, save for the two and a-half year term which was ordered to be served cumulatively. To effect his immediate release, the order for that term should be set aside, and he should be released on probation.
Through his counsel, the applicant agrees to a probation order for a period of 12 months. And the consequences of it, the Court has been told, have been explained to him by his solicitor. I would order that:
- Leave to appeal be granted and the appeal be allowed.
- The sentence of three years imprisonment be varied to one of two years and 329 days.
- The order for the sentence of two and a-half years imprisonment be set aside and for that offence the applicant be released under the supervision of an authorised corrective services officer for a period of 12 months from today and otherwise upon the terms of an order which counsel should prepare and bring into Court later today.
MORRISON JA: I agree.
FRASER JA: I agree.
- Published Case Name:
R v Carrington
- Shortened Case Name:
R v Carrington
 QCA 85
Fraser JA, Morrison JA, McMurdo JA
16 May 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC2495/18; DC2501/18; DC2528/18; DC267/17; DC1702/16 (No Citation)||09 Nov 2018||Date of Sentence.|
|Appeal Determined (QCA)|| QCA 85||16 May 2019||Application for leave to appeal against sentence granted; appeal against sentence allowed; the sentence of three years imprisonment be varied to one of two years and 329 days; the sentence of two and a-half years imprisonment be set aside and for that offence the applicant be released under the supervision of an authorised corrective services officer for a period of 12 months: Fraser JA, Morrison JA and McMurdo JA.|