The Queen v Taylor & Leigep[1997] QCA 159

COURT OF APPEAL

FITZGERALD P

DAVIES JA

MOYNIHAN J

CA No 101 of 1997

CA No 102 of 1997

THE QUEEN

v.

CRAIG ANTHONY TAYLOR and

MARK ANTON LEIGEP Applicants

BRISBANE

DATE 28/05/97

JUDGMENT

THE PRESIDENT: Justice Moynihan will deliver the first judgment.

MOYNIHAN J: Taylor and Leigep pleaded guilty to breaking, entering and stealing in respect of the disused Panorama Restaurant at Castle Hill in Townsville. There was a caretaker's residence associated with the restaurant. The caretaker had, on the evening in question, arranged to be out of town but for his friend, a woman called Valerie Jaggard, to stay in the residence.

She was awoken at about 11 p.m. by noises and, as a result, she rang the police and left the residence. Shortly afterwards she encountered the police, who were arriving in response to her call, and they entered the building. Taylor was seen standing near the drinks fridge with socks on his hands and in the event was found to be possessed of a radio scanner tuned to the police wavelength.

He fled, was pursued by the police and ultimately was found, together with Leigep who, I think, was wearing gloves. Both were dressed in dark clothing. In other words, it was a professional attempt. One suspects it was in anticipation of the premises being empty in view of the absence of the caretaker. It is also entirely likely that more than the two persons apprehended were involved, because property, which was missing, was not accounted for by either of them.

There was a struggle between the police officers and the two accused men which was obviously a quite vigorous and violent struggle. Taylor had possessed himself of a kitchen knife and in the course of the struggle one of the police officers was cut with the knife; that's Constable Nicoll. He discovered that he had a cut on his right forearm. A plea of guilty to unlawful wounding was accepted on the basis that the wound was not deliberately inflicted but was a consequence of the negligent use of the knife of which the accused had possessed himself in furtherance of his criminal activities and that the infliction of any injury in the circumstances was entirely foreseeable.

Leigep also pleaded guilty to resisting a police officer and that relates to the struggle which took place before the pair were apprehended.  It might be noted that Taylor at one stage offered as an explanation that they were thirsty and decided to break in for a drink but got carried away. There was a significant amount of property missing from the premises.

Both pleaded guilty. They are entitled to have that taken into account, although it will be apparent from what I have already said, that they were, in effect, caught in the act.  It may be presumed that it was fortunate that the police apparently did not have recourse to the police radio channel as a result of the telephone call that had been made by the woman who was filling in for the caretaker who, I might add, provided a victim impact statement which showed that the events had a disturbing and adverse effect on her which continued at the time of the sentence on 24 February 1997, the break and enter having taken place on 21 July 1996.

Taylor was born on 9 May 1975; he was therefore 21 years of age at the time. Leigep was born on 3 March 1975. They both have significant criminal histories, particularly for persons who are so young, and both criminal histories involve property offences and of becoming possessed of other people's property in unlawful circumstances. Leigep's is perhaps more extensive; Taylor, at least on one occasion, seems to have been dealt with more severely. Taylor was, of course, the person who possessed himself of the knife, with the consequences to which reference has already been made.

Each was sentenced to five years imprisonment in respect of the breaking, entering and stealing.  Taylor was sentenced to two years imprisonment in respect of the unlawful wounding and Leigep to 18 months imprisonment for resisting a police officer in the circumstances that I have referred to earlier.

In my view the sentence of five years imprisonment in each case is manifestly excessive. The sentencing Judge had been provided with a schedule of what were described as "under five year sentences".  It seems that that is the same as the schedule with which this Court has been provided.  The very title of the schedule shows that it dealt with cases of breaking, entering and stealing where sentences under five years had been imposed. 

The schedule also shows that there is a wide variation, as one might expect, reflecting the different circumstances in the sentences which were imposed, and it cannot really be said that any of the sentences were comparable.

In the course of argument the Crown Prosecutor provided this Court with a copy of the decision of the Court of Criminal Appeal of this State in Ogilvie, CA Number 155 of 1990, decision delivered on 13 August of that year.  In that case the Court interfered with a sentence of six years imprisonment with a recommendation for consideration on parole after two years and the six-year sentence was reduced to five years imprisonment on appeal. The effect of the intervention of the Court was really to reduce what was effectively a seven-year sentence to six. That was because of the imprisonment which the appellant had served and which was not taken into account under the legislation as it then stood but as is now required to be done. 

As by way of comparison to the case here, Ogilvie was a man with a criminal history far more significant than that of either of the applicants here. He had broken into a police station and stolen firearms and other property for the purpose of furthering other criminal activities. Ogilvie might be regarded as being at the top of the range and for the reasons that I have indicated bears little comparison with the circumstances of the present case.

I omitted to mention, but I should record, that Taylor was also ordered to pay compensation in the amount of $1,500 within three months in respect of the injury he inflicted.

As I have said the sentences for breaking, entering and stealing in each case were manifestly excessive. Taylor was the person who not only resorted to violence but had the knife and his criminality in terms of his involvement in the whole offence reflects that.  In his case I would set aside the sentence of five years imprisonment and impose a sentence of three years imprisonment in respect of the breaking, entering and stealing.

I would not interfere with the sentence for unlawful wounding and I would not make a recommendation for consideration for early eligibility having regard to his criminal history and the circumstances of the commission of the offence. Any benefit of an early plea is in my view reflected in that sentence.

In Leigep's case I would set aside the sentence of five years for the breaking, entering and stealing and substitute a sentence of two years and six months imprisonment but once again I would not otherwise interfere with the sentence for resisting a police officer nor make a recommendation in respect of the early eligibility considerations.

The orders made below, including the declarations in respect of terms already served, otherwise stand.  I do not intend that there be any alteration to those and that it therefore seems unnecessary for this order to make any provision in respect of them.  If I am incorrect in that I am sure I will be told.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT: The order of the Court is application for leave to appeal against sentence and appeal is allowed in relation only to the terms of imprisonment imposed in respect of the offence by each applicant of break, enter and stealing.

In respect of the applicant, Taylor, the sentence of five years imprisonment in relation to that offence is set aside and a term of imprisonment of three years is substituted. In respect of the sentence for Leigep for that offence the term of imprisonment of five years is set aside and a term of two years and six months is substituted.

In relation to each the declarations which were made concerning time in prison to be time already served are to stand. The order for compensation by Taylor to David John Nicoll, the police officer, of $1500 within three months in default three months imprisonment, is to stand and in respect of Taylor it is pursuant to section 189 of the Penalties Act,  it is again noted that the offence of possession of property suspected of being stolen has been taken into account.