R v Mallon[1997] QCA 58

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 480 of 1996

Brisbane

THE QUEEN

v.

DANIEL CLINTON MALLON

(Applicant)

Macrossan CJ

Davies JA

McPherson JA

Judgment delivered 21 March 1997.

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCES DISMISSED.

CATCHWORDS: CRIMINAL LAW - Sentence - applicant sentenced to six months' imprisonment on each of two charges of obtaining money by false pretences and to four years' imprisonment for attempted robbery - offences committed while previous suspended sentence current - whether sentence manifestly excessive - effect of failure of sentencing judge to state that applicant's plea of guilty had been taken into account in the sentence imposed.

R v. Ridgley CA No. 252 of 1995, unreported, 2 October 1995, applied;

Wainwright v. Reibelt CA No. 128 of 1993, unreported, 19 August 1993, applied.

Penalties and Sentences Act 1992 - s 13(3).

Counsel:  Mr A. Glynn SC for the applicant.

Mr D. Meredith for the respondent.

Solicitors:  Robertson O'Gorman for the applicant.

Director of Public Prosecutions (Qld) for the respondent.

Hearing Date: 25 February 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered  21 March 1997

The applicant seeks leave to appeal against three sentences imposed by a District Court judge on 7 October 1996.  He had pleaded guilty to three charges, two of obtaining money by false pretences on dates in July and August 1996 and a third of attempted robbery at Cairns on 3 September 1996. 

The applicant was sentenced to terms of imprisonment of six months on each of the first two charges and four years on the third, all to be served concurrently with one another and with certain other sentences that had been imposed on the same day because of the applicant's failure to observe the terms of suspended sentence orders made in February 1995.  The suspended sentences arose out of two offences of stealing and one of breaking and entering a dwelling house with intent, all committed on 7 September 1994.   The suspended terms were nine months on each of the stealing charges and eighteen months on the breaking and entering offence. 

The District Court judge sentencing for the matters the subject of the present application having considered the suspended sentences, ordered that the applicant should serve the whole of the suspended terms.  The judge, pursuant to s. 147(2) of the Penalties and Sentences Act 1992, was not of the opinion that it would be unjust in view of the circumstances to order in that fashion. On the hearing of this application no challenge was offered to the order that the suspended terms should be fully served.  Further, since the effective term imposed for the subsequent offences committed in 1996 was the four year term for attempted robbery, the attention of the applicant's counsel concentrated upon it.  The question is whether that sentence is manifestly excessive.

The applicant was born on 18 March 1974.  He had a criminal history to which it is necessary to refer.  Commencing in 1991 when he was seventeen years of age, his criminal history sheet covers a variety of offences of dishonesty including stealing and breaking entering and stealing, and also drug related offences as well as more minor matters.  On some five occasions he had either been placed on probation or ordered to perform community service or orders of both kinds had been imposed.  On three further occasions he had been convicted and fined, including on one occasion for breach of a community service order.  Still, in no case prior to February 1995 had a sentence of imprisonment been imposed and on that occasion, the prison terms that were imposed had been ordered to be suspended as has been mentioned.

The circumstances of the commission of the attempted robbery should be outlined.  It was contended for the applicant that on the day of the attempted robbery, because of a dispute in which he was involved, he was in a disturbed frame of mind and had been left stranded without money in central Cairns and without any obvious way of arranging transport to his residence.  This hardly provides justification for what followed.  The applicant observed a woman drawing money from an automatic bank teller machine and he then deliberately followed her.  When she stopped shortly after to look at a window display that attracted her attention he endeavoured to snatch the bag into which she had placed the money she had withdrawn.  She offered firm resistance.  He made some four determined attempts to gain possession of the bag as it was pulled back and forth between them.  His conduct became even more violent when towards the end of the episode he struck her with his clenched fist in the region of the temple.   Having failed in his attempts, he ran away but was almost immediately apprehended by bystanders who had seen what happened. 

The police were summoned but the applicant refused to take part in a formal record of interview.  After some discussion he permitted the police to accompany him to his residence at Palm Cove.  This led to the discovery of pawn tickets and eventually to his being charged with the two offences of obtaining money by false pretences.   In those cases, deceptions had been practised by the applicant who, without authority, had pledged or disposed of two items of property used to obtain advances from pawn brokers.

The violence involved in the attempted robbery was not insignificant and it must have been alarming to the victim.  The applicant pleaded guilty but the significance of his plea is reduced by the fact that he had been apprehended at the scene by bystanders and his conviction would have appeared inevitable.

The applicant had been treated in the past with considerable leniency for the various offences he had committed.  The offences for which he was given the benefit of suspended sentences in February of 1995 had been committed at a time when a probation order previously imposed upon him was still running.  The sentencing judge who had imposed the suspended terms warned the applicant in the clearest terms that if he broke the law again during the period of the suspension, he would go to gaol.

During the sentencing proceedings for the robbery,  the prosecutor submitted that an appropriate penalty would be in the range of eighteen months to three years "for an offence of that kind".   It is likely that the prosecutor was meaning to indicate what would be appropriate for an offence of the character in question but in making that observation it is not clear whether she was intending to allow for the fact that the applicant had prior convictions and in particular was still serving a suspended sentence.   She did immediately after making that submission add that the judge had an option to impose a penalty that was concurrent or one that was cumulative to the suspended sentence.  It thus does not appear that she was limiting herself to a suggestion that the appropriate sentence would be no more in its effect than three years imposed concurrently with the activated suspended term. 

The practical effect of the four year concurrent term which the judge ordered to be served was that it had the effect of an additional two and a half years for the robbery and the two offences of false pretences dealt with at the same time.  Those further two offences would not be expected to add in any significant way to an appropriate term for the robbery but still they had to be taken into account.  Having in mind the circumstances of the attempted robbery, the general prior history of the applicant and the fact that the offence was committed at a time when the suspended sentences previously imposed were still running, it does not appear that the four year concurrent term was in any way immoderate.

At the hearing of this appeal the point was made that the sentencing judge in breach of his obligation under s. 13(3) of the Penalties and Sentences Act 1992 failed to state in open court that he took account of the guilty plea in arriving at the sentence imposed.  This court has had occasion before to remark upon the effect that should follow the sentencing court's failure to make that necessary statement:  see e.g. The Queen v. Ridgley CA No. 252 of 1995, unreported, 2 October 1995 and Wainwright v. Reibelt CA No. 128 of 1993, unreported, 19 August 1993.  One result will be that the failure to comply with the statutory obligation will place the imposed sentence in jeopardy.  It will cause the appeal court to examine it closely since it will not clearly appear that the court has in fact taken the plea into account.  There are peculiarities in the drafting of s. 13 and in particular it may be noticed that while a failure to take subsection (4) into account is expressly stated to be a matter which will not invalidate the sentence imposed, a failure to comply with subsection (3) does not  receive the same level of express statutory protection.  There is no need in the present case to devote further attention to the general effect of a failure to state in open court that a guilty plea has been taken into account or to take the matter any further than the observations made in the two cases referred to above.

Here it was hardly likely that the fact of the plea would have been overlooked by the sentencing judge since the matter came to him on an ex officio indictment.  This court is able to state its conclusion that the sentence imposed was not manifestly excessive and was one which can be accepted as being fully appropriate in the circumstances. 

The application should be dismissed.