The Queen v McIlwain[1997] QCA 347

COURT OF APPEAL

McPHERSON JA

WILLIAMS J

BYRNE J

CA No 196 of 1997

THE QUEEN

v.

MARK ANDREW McILWAIN Applicant

BRISBANE

DATE 15/07/97

JUDGMENT

McPHERSON JA:  Twice in the last three or four years, this applicant for leave to appeal against sentence has been convicted on his own pleas of guilty of offences of breaking and entering a dwelling house and stealing.

The first occasion was on 1 June 1995 when Judge McLauchlan sentenced him to imprisonment for 12 months for those offences committed on 2 March 1994, such sentence to be suspended for three years.  The applicant was also ordered to pay compensation of $4,600 which, it may be noted, has not been paid.

The second occasion was on 23 April 1997 when he pleaded guilty to offences of the same kind committed this time on 27 May 1996, and was sentenced to an effective term of imprisonment of five years for those two offences.

The commission of the second set of offences had, of course, the effect of activating the suspended sentence on the first set of offences committed, as I said, on 2 March 1994.  The learned sentencing Judge on the sentence hearing on the second occasion imposed a sentence of five years imprisonment to be cumulative on the 12 months sentence which had been activated in that way.  The result was to require the applicant to serve six years in respect of all of these two sets of offences.

It is against the five year sentence that the application for leave to appeal is now made.

The offences bear some similarity.  Both were committed at dwelling houses in Mackay during the day.  In each instance, the applicant apparently waited until the occupants of the houses had left their houses.  In the first case, jewellery was taken, resulting in the order for compensation of $4,600 to which I have referred.  In the second case, an amount of $1500 in cash was taken from a locked briefcase apparently in the bedroom of the occupant of the house.  A degree of persistence and perhaps audacity is evident in the modus operandi in each case.  The applicant was discovered essentially, I gather, from finding latent fingerprints that gave him away, but in each case he, in the end, pleaded guilty.

The applicant was born on 17 January 1967 and so was 30 years old at sentencing on 28 April 1997.  He has an extensive criminal record dating back to childhood days.  Many of them are offences of breaking, entering and stealing, as well as various drug offences.

He has been given the benefit of probation but without improvement, and he has also been sentenced to imprisonment for a period as long as two and a half years for some nine breaking and entering offences committed in 1990.

There is, nevertheless, as it seems to me, an element of severity in the effective sentence of six years imposed, as it were, in respect of these two sets of offences and, in particular in the case of the five year sentence, imposed for the second set of two offences.

There is also some evidence in the record that the applicant has gone some way towards rehabilitating himself.  He is said to have broken free of the drug addiction to which I have referred, and he has succeeded in finding and, on occasions, keeping for some time paid work or employment.  He has, it is said, formed a relationship of some permanence with a young woman by whom he has had two children, one of them recently.

His offences are inexcusable and there seems little prospect that he will pay the compensation ordered against him.  No point is taken by the applicant about the imposition of the 12 month imprisonment sentence that was formally suspended in respect of the first offence, which, it is accepted, must be cumulative upon the sentence for the second set of offences.

However, considering as I do that, despite his previous bad record, sentencing the applicant to five years is excessive for the offences concerned, I would allow the appeal and impose the sentence as suggested by counsel for the applicant of two and a half years for the stealing offence and three and a half years for the break and enter offence committed on 27 May 1996.  Those two sentences are to be served concurrently, but to be cumulative on the sentence of 12 months ordered to be served for the offence committed on 2 March 1994, which offence was originally suspended. 

Those are the orders that I would make.

WILLIAMS J:  I agree.

BYRNE J:  I agree.

McPHERSON JA:  The application and appeal is allowed.  The sentence for the break and enter offence committed on 27 May 1996 will be varied by reducing it to three and a half years, and for the stealing offence committed on the same day to two and a half years.  Those sentences are to be concurrent but cumulative on the sentence of 12 months for the offences committed on 2 March 1994.