The Queen v Whelan[1997] QCA 305

COURT OF APPEAL

MACROSSAN CJ

McPHERSON JA

de JERSEY J 

CA No 285 of 1997 

THE QUEEN  

v. 

LUCAS JOHN WHELAN 

BRISBANE

DATE 26/08/97

JUDGMENT

THE CHIEF JUSTICE:  This applicant who seeks to challenge the sentence imposed upon him was a 26 year old offender with a drug addiction.  He was sentenced on 27 June 1997 for a very large number of offences.  There were numerous breaking and entering offences and also there were offences in the following categories;  unlawful use of a motor vehicle; wilful damage; assault occasioning bodily harm; breach of probation; bail offences and other offences of dishonestly. 

When sentenced terms of imprisonment of varying length were imposed, but looking at the longest of them for the purpose of deciding what was the effective penalty, it can be seen that a term of three years was imposed. 

Although the various sentences on this occasion were concurrent, the three years to which I have just referred was made cumulative on sentences that the applicant was then serving. 

The Judge having announced the three year effective term also declared that the non-parole point should be reached three years ahead, that is three years from June 1997.  These offences, for which he was sentenced, were all committed in the course of a single week or so when the applicant was unlawfully at large having absconded from a drug dependant centre while he was serving a sentence of home detention.  He and the co-offender for that matter, who was involved with him, departed in the middle of the applicant's course at the drug dependant centre in August of 1996. 

The applicant has had a long criminal history and over the years various orders have been made in his case for probation at first then fines and eventually imprisonment.   

In particular the applicant had previously been sentenced to a term of seven years imprisonment in July of 1994 for very many offences once again; house breaking; stealing and other offences of dishonesty.  There were, I believe, a number of offences of the order of 75 dealt with on that occasion. 

Accompanying that seven year term the Judge who had then sentenced the applicant ordered that he be eligible for parole after serving 12 months of that sentence.   

There were additional rather shorter terms of imprisonment that then applied to the applicant, one month for breach of bail and four months for being unlawfully at large.  The effect then was that he was, in effect, sentenced to a total term of some seven years and five months before the present additional head term of three years cumulative was imposed. 

The total sentence, adding together all of the periods that I have mentioned of some 10 years and five months, were dated back in their operation to May of 1994 and that meant that those head terms would run to November/October of 2004.  It is not necessary for present purposes to be more precise than that.   

The benefit of the parole order of 12 months, which I have referred to, would have been lost because of the applicant's escape from custody.   

The Judge sentencing in June of 1997 who fixed a non-parole point of three years accordingly made an order which meant that the applicant's non-parole point would be reached in June of the year 2000. 

It was pointed out to us in the submissions put on the applicant's behalf that the halfway point of all the cumulative sentences which applied in the applicant's case commencing from May of 1994 would have been reached in July of 1999 and, accordingly, the order for parole eligibility at June 2000 is somewhat more adverse in the applicant's case than that halfway point.   

Our attention was directed to various pronouncements of this Court in previous cases including the case of Griinke which says, in effect, that special circumstances of some kind should be found before a sentencing Court will order a non-parole point more than halfway through a sentence.  But the Court when it made those observations was not dealing with the case of cumulative sentences which bring complexities of their own with them.  In fact a subsequent decision of this Court in the matter of Coss pointed out the rather irregular way in which an attempt to apply a formal rigid rule of any kind like that would operate in an area where cumulative sentences have been ordered to be served. 

The real situation is that in circumstances like the present there is no rigid principle which should be insisted upon and that the matter will reside in discretion and that it was open to the sentencing Judge in the present case to make an order which, to him, seemed, in his discretion, to be appropriate having in mind the criminal history of the applicant. 

It cannot be said that the operation of the circumstances in combination with the Judge's order has resulted in any manifest excessiveness of the penalty ordered looking at the non-parole period in particular. 

It was in effect accepted in argument before us, as it had been below, that there was nothing wrong in the circumstances with the Judge's having imposed a cumulative head sentence and the main force of the argument was directed to suggesting there was some error in the fixation of the non-parole point. 

In my view it is not possible to say that and as I have indicated it is not possible to say that there was a manifestly excessive sentence imposed from that point of view and I would refuse the application. 

McPHERSON JA:  I agree. 

de JERSEY:  I agree. 

THE CHIEF JUSTICE:  The application is refused.