The Queen v Bulmer[1997] QCA 34

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 493 of 1996

Brisbane

[R. v. Bulmer]

THE QUEEN

v.

PETER JOHN BULMER

(Applicant)

Davies JA

McPherson JA

Fryberg J

Judgment delivered 14 March 1997

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14 March 1997

On 30 August 1996 the applicant was convicted in the District Court on his own plea of guilty of 28 counts of unlawful use of a motor vehicle (including one with circumstances of aggravation), one count of attempted unlawful use of a motor vehicle, two counts of dangerous driving, one count of serious assault, one count of wilful damage, 14 counts of stealing and one count of false pretences.  On the charge of unlawful use with a circumstance of aggravation he was sentenced to four years' imprisonment; on each of the 27 counts of unlawful use and two counts of dangerous driving, he was sentenced to two years' imprisonment; on the serious assault count he was sentenced to 18 months' imprisonment; and on each of the other counts he was sentenced to 12 months' imprisonment.  A recommendation for consideration for parole on 6 June 1998 was made.  The sentences were concurrent with each other but cumulative upon a period of imprisonment then being served by the applicant.  In respect of that sentence his expected discharge date (taking into account remissions) was 6 May 1997.

The applicant, who was unrepresented, did not expressly identify which sentences he sought leave to appeal against, but his argument was directed at the sentence of four years.  He argued that this sentence, imposed as cumulative upon his existing imprisonment, was manifestly excessive.  He seemed to invoke the totality principle.

The offences took place from September 1995 to February 1996.  They were interrelated.  Typically, the applicant would take a motor vehicle, and steal property from it.  The false pretences charge arose from an attempt to sell some of that stolen property.  One of the dangerous driving charges arose when police approached a stolen vehicle to apprehend the applicant.  While a police officer had hold of the applicant through the driver's side window, he started the vehicle and moved off.  The police officer was dragged along the side of the road until he hit the stationary police car and was dislodged.  He received bruising to the arms and ribs.  That incident was also the subject of the serious assault charge.  The wilful damage charge related to a vehicle which was broken into and from which property was stolen.  The vehicle was not taken, presumably because the applicant was disturbed in the process.

The second dangerous driving offence was the latest in time of the offences charged.  It occurred on 28 February 1996.  Police attempted to apprehend the applicant who was observed driving a stolen vehicle on the Pacific Highway.  He drove at speeds in excess of 160km/h and swerved in and out of moderate north bound traffic.  The vehicle crashed near Yatala.  The applicant ran away but was located by a tracker dog.  The vehicle was extensively damaged.

The precise circumstances of the offence which attracted the sentence of four years do not appear from the material before us, but that is not of major importance.  It seems plain that the learned sentencing judge took into account not simply the one offence but rather the total criminality of the applicant's conduct over a period of months.  That was a proper approach to the sentencing problem before him.  His Honour described the applicant's criminal history as a serious one and there was no challenge to that description.  He also took into account that 18 of the offences were committed while the applicant was on parole.  (In this he may have been unduly generous to the applicant - the Crown submitted to us that all of the offences were committed while the applicant was on parole).  As the judge observed, some of the offences were committed while the applicant was on bail for others of them. 

In the applicant's favour, it should be said that many of the offences would have been unknown to the police but for the fact that the applicant volunteered information about them.  He made full admissions in relation to all offences, indicating that he was under the influence of heroin on many occasions.  He consented to the use of an ex officio indictment and pleaded guilty to all of the charges.  He has already made some progress towards rehabilitation in prison. 

The applicant submitted that the effect of the sentences, particularly the sentence of four years, would be that he would have to serve a total of 29 months before becoming eligible for parole.  That figure was calculated taking into account an additional month which would have to be served as a result of a subsequent conviction in the Magistrates Court for driving while disqualified.  Of that period, the time from February 1996 until May 1997 represented the balance of the applicant's existing sentence, required to be served by reason of his breach of parole.  The sentences the subject of the application will (assuming full remissions) begin at that time and the applicant will become eligible for discharge in respect of them (on the same assumption) two years and eight months later.  (It is not appropriate to take into account the subsequent cumulative sentence, against which no appeal has been brought.)  He will become eligible for parole (again on the same assumption) after serving 13 months of the sentences imposed for these offences. 

Having regard to the circumstances set out above, these outcomes cannot be said to be onerous or likely to produce a crushing effect upon the applicant.  The sentences are not disproportionate to the criminality involved.  They properly take into account the matters which are favourable to the applicant.  They were not outside the discretion of the sentencing judge.

The application should be refused.