The Queen v Whelan[1998] QCA 151

COURT OF APPEAL

DAVIES JA

PINCUS JA

DOWSETT J

CA No 430 of 1997

THE QUEEN

v.

JODY MAREE WHELAN

BRISBANE

DATE 17/03/98

JUDGMENT

DAVIES JA:  I shall ask Mr Justice Pincus to deliver his reasons first - I'm sorry, Mr Justice Dowsett.

DOWSETT J:  The applicant was born on 2 February 1967 and was 30 years of age at the time of sentence. She was 29 at the time of commission of most of the offences. On 7 November 1997 she pleaded guilty to two counts of breaking, entering and stealing; 19 counts of housebreaking; 19 counts of stealing; one count of unlawful use of a motor vehicle and one of wilful damage. These offences occurred between 4 May 1995 and 18 January 1997. The total amount of property involved was about $160,000.

She was apprehended as a result of her fingerprints being found at the scenes of a number of the offences. She then admitted her involvement in a large number of other offences. Most of the offences occurred while she was either on bail or subject to a probation order. She is a drug addict. There is little doubt that the offences were committed to service that addiction. She has three young children aged six, three and two as at the date of sentence. They were presumably dependent upon her and resident with her.

The applicant has a substantial criminal history dating back to 1984 in which year she was admitted to probation for two years on a charge of entering a dwelling house with intent. There were occasional minor offences thereafter, including offences of dishonesty until 1995, when she was charged with breaking and entering a dwelling house, stealing and receiving. She failed to appear but was subsequently dealt with for those offences in 1996, at which time she was also dealt with for a number of other similar offences. She was sentenced to imprisonment for four months to be followed by probation for three years. She was later re-sentenced for the offences, receiving a total sentence of 18 months with a recommendation for parole after six months.

On the present breaking, entering and stealing and housebreaking counts she was sentenced to nine years imprisonment. On the stealing counts and on the wilful damage count she was sentenced to imprisonment for a period of one year. On the unlawful use count she was sentenced to imprisonment for a period of five years. All sentences were ordered to be served concurrently with a recommendation for parole after three years. A co-accused, one Bell, had previously been dealt with on three counts of housebreaking, one of entering a dwelling house with intent, four counts of stealing, two of unlawful use, one of receiving and one of false pretences. She also had a not insubstantial criminal history. She was sentenced to three years imprisonment with a recommendation that she be considered for parole after serving 12 months. The total value of property taken in her case was about $50,000 of which $30,000 was recovered. Obviously, the totality of her misconduct was much less than that of the present applicant.

The parties have referred to the decisions of Burrows (CA No 376 of 1989), Kavanagh (CA No 64 of 1993), Barnes (CA No 296 of 1993) and Robinson (CA No 534 of 1994). Of these, Burrows is by far the oldest, being a decision of the Court of Criminal Appeal handed down on 11 April 1990. The applicant there had taken property valued at about $15,000 in some 50 housebreaking offences carried out between April 1987 and May 1989. The applicant is referred to in the reasons as a young man, although his actual age does not appear from the record. He was sentenced to nine and a half years imprisonment. Taking into account a period of three months already spent in custody, this was equivalent to a sentence of about 10 years. The applicant had previously been convicted in 1988 for 28 similar offences. On that occasion he was sentenced to imprisonment for a period of four months and probation for three years. Most, if not all, of the current offences had been committed whilst on probation. It was said that he had engaged in housebreaking to satisfy his need for alcohol. The Court considered the sentence to be heavy but did not interfere.

Kavanagh (judgment delivered 5 April 1993) was a decision by a Court of two Judges refusing an application for leave to appeal against sentence. The applicant had pleaded guilty to 11 counts of housebreaking, 10 of stealing, one of dangerous driving, one of attempted housebreaking, one of receiving and one of false pretences. A further 61 housebreaking and 64 stealing offences were also taken into account. The offences were committed over a period of about 12 months from late 1991 at the Gold Coast. The applicant was aged 29 years and had a prior criminal history, including many convictions for serious offences of dishonesty and personal violence. He had previously been placed on probation and given community service orders but had also been sentenced to imprisonment for six years for robbery. He was sentenced to an effective total term of eight years and eight months with a recommendation that he be considered for parole after three years and six months. The total value of property involved was $190,000, none of which was recovered. He was supporting a substantial heroin habit.

It is of some significance that Kavanagh had previously been sentenced to a lengthy period of imprisonment. When such a person again offends, particularly if the offence is of a similar nature, it is almost inevitable that he will be sentenced to a further, and probably lengthier period of imprisonment. The Court considered the sentence to be at the top of the range but did not interfere.

Barnes (judgment delivered on 10 November 1993) pleaded guilty to 47 counts, including two of housebreaking, 29 of stealing, 11 of receiving, three of false pretences, one of unlawful use of a motor vehicle and one of attempted stealing. On a second indictment he pleaded to one count of burglary, two of stealing and one of receiving. He was apprehended by police on 31 March 1992 and found to be in possession of stolen property. He was summonsed to appear in respect of those matters. Subsequently, he was again intercepted and again found to be in possession of stolen property. Numerous of the offences were committed while he was on bail. All offences were committed to fund his heroin habit. He was sentenced to seven years imprisonment on the burglary charge and to lesser periods on the other charges, all of which were to be served concurrently. It was recommended that he be eligible for parole after three years. He had previous convictions for offences of dishonesty and drug-related offences and was 33 years of age when sentenced. This Court considered that the sentence of seven years for burglary was heavy but not manifestly excessive, and the application was refused.

Robinson (judgment delivered 24 March 1995) involved an applicant then 24 years of age, and 23 at the time of the relevant offences, who had been convicted of 15 offences. The sentencing Judge took into account 76 other offences. There were 10 burglaries and 35 counts of housebreaking involving 43 different residences and property to a total value of over $80,000. There were also 46 stealing charges, three counts of false pretences and one of entering a dwelling house with intent. The applicant had a history of similar offences in Victoria and had previously had the benefit of a community- based order lasting for 12 months. During that period he had again offended and had been sentenced to imprisonment. He was subsequently again convicted in Victoria for offences of dishonesty and received sentences of imprisonment, including eight years for aggravated burglary and other charges. He was a heroin addict. He was sentenced to imprisonment for a period of seven and a half years with a recommendation for parole after two and a half years. This Court did not intervene. Although Robinson was younger than the present applicant, he had been sentenced to imprisonment for eight years in Victoria, leading to an inference that his record was worse than is that of the present applicant.

Justification of the present sentence depends upon acceptance of Burrows as providing a good guide to the top of the appropriate range. While it is very difficult to discriminate between that case and the present, the same remark might be made about Kavanagh, Barnes and Robinson. A range of seven to ten years may be appropriate for such a cluster of offences as occurs in each of these cases but much will depend upon the previous history of the accused and also upon the degree of cooperation with the police. It is quite common for an offender apprehended in connection with some such offences to admit to involvement in many others. This no doubt assists the police in some respects, although one doubts if it is generally of much comfort to the victims. However, one must observe that a sentence in the vicinity of nine to ten years seems much more appropriate to offences involving property where violence is also involved, than to offences of the present kind.

Burrows can be distinguished from the circumstances of the present case by the fact that the offender there had, a relatively short time previously, been dealt with for another large cluster of similar offences and had received a short period of imprisonment, coupled with a probation order. Had the Court on that occasion not chosen to deal with him in that way, it is likely that he would have received a lengthy period of imprisonment. He, like Kavanagh and Robinson, should perhaps be seen as a person who is being dealt with for a repetition of conduct previously committed and which previously would have justified a sentence in the vicinity of seven years.

As I have already observed, Kavanagh and Robinson also had both received substantial periods of imprisonment prior to the offences in question. Given that in Kavanagh, the Court considered the penalty to be high, it is difficult to see how the sentence in the present case can be squared with it. It is more likely, I believe, that the decisions in Robinson and Barnes give a reasonable indication of the appropriate order of sentencing for a case such as the present one. There are, after all, some circumstances of mitigation to be taken into account. As I have said, she pleaded guilty and no doubt saved some public money by so doing. She was an addict, and it is important that we not lose sight of the consequences of heroin addiction. She had family commitments.

In all of the circumstances, I consider that the range for an offence of this kind, if one is to speak of ranges, was much closer to seven years than to nine or ten. I would be minded to grant leave to appeal and to set aside the sentence in so far as it relates to the counts upon which she was sentenced to imprisonment for a period of nine years, substituting therefor a period of imprisonment of seven years. I consider, however, that the recommendation as to parole remains appropriate and would not interfere in connection with that aspect of the sentence.

DAVIES JA:  I agree.

PINCUS JA:  I agree.

DAVIES JA:  The order is as indicated by Mr Justice Dowsett.