The Queen v Herricane[1997] QCA 426

McPHERSON JA:  The applicant was convicted at his trial in the District Court of 10 counts of receiving stolen property valued at some $35,000 which was the product of 10 different housebreakings committed over a period of two months or less. The apprehension of the applicant was the result of an undercover police operation in which four other co-offenders were also apprehended and later sentenced.  The property consisted of items such as electrical equipment, microwave ovens, stereo systems, television sets, cameras, a computer and accessories and the like.  The offences were not just a random series of receivings but part of a well organised illegal enterprise conducted on commercial lines. 

In sentencing the applicant, His Honour said:

"The offences you were involved in were part of a commercial enterprise to obtain money for drugs.  Although you did not break into the houses you were an integral part of the criminal enterprise.  I am satisfied that in some cases you were involved in the negotiation of the price paid for the stolen property and that in most cases you received part of the proceeds obtained from the sale of the stolen property."

The sentence imposed was imprisonment for five years with which the applicant was ordered to serve concurrently a separate and earlier suspended sentence of imprisonment for six months.  It was activated by the conviction and sentence now under review.

The personal circumstances of the applicant are that he is 24 years of age, with what might be described as an orthodox broken family background. 

The subject offences were committed to obtain money to satisfy a drug addiction.  Partly, no doubt for that reason, he has an extensive criminal history.  As a juvenile offender his record includes 23 convictions for unlawful use of a motor vehicle and 12 for breaking, entering and stealing, as well as convictions for stealing and destruction of property.  Since obtaining his majority he has continued to sustain numerous further convictions for unlawful use of a motor vehicle, wilful damage, assaults, break and enter, possession of drugs, resisting police, and so on.

Matters also relevant to the sentence imposed on this occasion are that in January 1990 the applicant was placed on probation for two years for an unlawful use offence committed in September 1989.  Six months into that probation he was convicted again of eight similar offences.  His probation was terminated and he was sentenced to imprisonment for 18 months.  In 1994 he was once more placed on probation, this time for three years, for a further series of housebreaking offences.  He re-offended three months later and was sentenced to a 12-month intensive correction order.  Two months after that order was imposed on him he committed offences under the Drugs Misuse Act.  He was later dealt with by revoking the intensive correctional order and sentencing him to imprisonment for six months to be suspended for two years after he had served one month of it.  The offences now under consideration were committed only two months after his release from prison in terms of that order.

The sentences are complained of as excessive and perhaps also as being disproportionate to sentenced imposed on his co-offenders.  A review of other sentences for receiving in comparable cases, of which there have been few in the last few years, suggests perhaps that there is a tariff penalty of the order of three to four years' imprisonment in cases of this general kind.  However, in each of those cases, which are Carroll in 1987; Hiratos, 1990; and Highland in 1992, where the sentence was six years; and in Misura, the offender had pleaded guilty; it should be added that in two of them the offender received a recommendation for parole. 

An additional period of imprisonment in the case of the applicant here can be justified by reference to his extensive criminal history, his persistent breaches of probation and similar orders, and to the fact that the Judge made the activated sentence, which had formerly been suspended, concurrent with the subject sentence of five years' imprisonment.

As to the complaint of disparity, one of the co-offenders, Devlin, was sentenced to three and a half years' imprisonment with a recommendation after 14 months.  He was another drug addict but with a lesser criminal record.  Harrison received a sentence of five years cumulative on a previous sentence, but with a recommendation after five years.  He had committed numerous offences of housebreaking, stealing, false pretences, and so on, but entered an early plea of guilty and is said to have cooperated extensively with police.  Cooper received four years with a recommendation after 16 months, but he also cooperated with police and had a less extensive criminal record.  Perry, who was sentenced by the same Judge who sentenced the applicant here, was an offender on a much larger scale and is said to have been the principal operative of this criminal ring.  His sentence was seven years, but with a recommendation after two and three-quarter years in recognition of his cooperation and timely pleas of guilty.

In my opinion, it cannot be said that the sentence of five years imposed here is either excessive or disproportionate to the sentences imposed on his co-offenders, having regard, among other matters, to his prior convictions; his disregard of previous and persistent attempts to facilitate his rehabilitation; the fact that he was under a suspended sentence at the time of these offences and that it was ordered to be served concurrently; and also that there were pleas of guilty and cooperation on the part of those co-offenders in the same activity.

There is no basis on which the complaint against the sentence can be sustained, and I would dismiss the application for leave to appeal against it. 

PINCUS JA:  I agree.

de JERSEY J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal against sentence is refused.