The Queen v Amos[1998] QCA 204

COURT OF APPEAL

de JERSEY CJ

DEMACK J

HELMAN J

CA No 94 of 1998

THE QUEEN

v.

PAUL GREGORY AMOS (Applicant)

BRISBANE

DATE 18/06/98

JUDGMENT

DEMACK J:  This is an application for leave to appeal from sentences imposed on the applicant in the District Court at Southport.

The applicant was charged with four counts of burglary, one count of housebreaking, five counts of stealing and four counts of false pretences. He was sentenced to four years' imprisonment on each of the burglary charges, three years' imprisonment on the housebreaking charge, 12 months' imprisonment on the stealing and 12 months' imprisonment on the false pretences. The sentences were to be served concurrently with a recommendation for parole after 12 months.

The applicant has previous convictions for possession of cannabis and a pipe, those offences being detected when he was spoken to by the police about the offences the subject of this application. He also has an earlier conviction for an offence of obscene language.

The applicant is 26 years of age, having been born on 27 March 1972. He was 24 at the time when the offences were committed. The offences were committed in the period from the end of September 1996 to 26 October 1996.

The general procedure that was followed was to break and enter premises and steal various items, including CDs and jewellery. Various of these items were pawned by the applicant. The total value of the property stolen was $12,658.

At one of the premises that was burgled, fingerprints were found, and it was not until May of 1997 that these fingerprints led the police to interview the applicant. He made full admissions of his involvement in the crimes.

He admitted to pawning various items, and in each instance the relevant pawnbrokers were not able to produce any records to confirm what he said. He also named co-offenders, giving the full name for one and the first name of the second. Neither of those co-offenders has yet been charged. In those circumstances, the naming of them may indicate little more than a sense of remorse for being involved in the offences.

The prosecutor placed before the sentencing Judge a list of some decisions of this Court. Regrettably, the one case to which the sentencing Judge referred, that of Rogers, CA 299 of 1988, was incorrectly noted on the list as involving an offender who had no criminal history. It is quite clear that that particular offender did have a criminal history. The sentence imposed there was four years with a recommendation added by this Court for parole after 15 months. On the basis of that error, it was submitted that the sentencing Judge was led to treat these offences more seriously than they merited. The other cases on that list were also of people with significant convictions for similar offences committed prior to the offences for which they were dealt with in this Court. However, it cannot be said that there is any inflexible rule about the number of burglaries and housebreakings which must be committed by a mature person in order to attract a sentence of four years' imprisonment. One of the matters to which our attention was drawn is the decision of this Court in Davidson, CA No 210 of 1997. There, the sentence was four and a half years' imprisonment for five offences of housebreaking, six of burglary and 11 associated counts of stealing. The total amount involved was $30,000 and the offences were committed over a three-month period.

The applicant there had pleaded guilty at an early stage and had assisted police in locating stolen property. He had made some admissions and disclosed his co-offender, or co-offenders. He had also conceded that his car was involved in the commission of some of the offences. This Court added a recommendation for parole after 18 months but let the head sentence stand.

Reference was also made by Mr Hunter to the decision of this Court of McCarthy, CA 533 of 1994. That was a case which involved a number of offences. Some were dealt with by the District Court on 8 July 1994 and a sentence of six months' imprisonment was imposed, and on that occasion there were two offences of breaking, entering and stealing, one of stealing and one of unlawful use of a motor car. The sentence of six months' imprisonment was to be followed by three years' probation.

Further offences were dealt with in the District Court on 2 December 1994, and it was those sentences then imposed which were the subject of appeal. They were numerous offences of breaking, entering and stealing, and a sentence of four years was imposed on that occasion. That sentence was reduced by this Court to two years and six months. However, it must be kept in mind that the earlier sentence was not subject to appeal so that the effective sentence was closer to three years.

It does seem to me that it is possible to make precise comparisons between the sentences that are imposed. There is inevitably a range of sentences that may properly be imposed and it seems to me that this sentence is within proper range. The sentencing Judge, who is responsible, among others, for the administration of the work of the District Court in Southport, noted that this was a very prevalent offence and he was entitled to take that into account in imposing sentence.

One of the issues raised on appeal concerns the effect to be given to the applicant's disclosure of the names of co-offenders. It was submitted by Mr Hunter that on the basis of the decision of this Court in Thompson (1994) 76 Australian Criminal Reports, 75, that there should be a 40 per cent reduction in the head sentence because of the offer of co-operation.

It seems to me that that involves an over-generous reading of the decision in Thompson. That case involved clear written evidence of what would be done to support the prosecution of other offenders and the cases that were considered by this Court were all in that category. Consequently, the Court said, at page 79:

"Having studied the statements made by the police here and there being no suggestion that they should not be taken at face value, we think the present to be a case in which a substantial and identified discount should be given for the applicant's having provided information to assist in the investigation of offences other than those which he himself committed."

That is a very situation from the one in this case. However, since the decision was given in Thompson's case, the Penalties and Sentences Act has been amended to add section 13A. Previously, the Courts were required to take into account, under section 9(2)(i): 

"How much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences".

How that is now to be done is provided by section 13A which begins:

"This section applies for a sentence that is to be reduced by the sentencing Court because the offender has undertaken to co-operate with law enforcement agencies in a proceeding about an offence including a confiscation proceeding."

The section then goes on to provide that the undertaking must be written, that the Court must cause the written undertaking and the sentencing remarks to be sealed and the Court must state that the sentences being reduced under this section and state the sentence which otherwise would have been imposed.

Now, it is clear that that section only operates where there is a willingness on the part of a person being sentenced to make a written declaration. When that happens, then the procedures spoken of in Thompson come into play. Here there was no such undertaking and the sentencing Judge had simply to comply with the requirements of section 9(2)(i). He has referred to the cooperation that has been given in his sentencing remarks and there is no reason to think other than that he has complied with the requirements of section 9(2)(i) of the Penalties and Sentences Act. As I have indicated, he made a recommendation for parole after 12 months which took into account the personal factors that justified such a recommendation.

In my view, nothing has been shown to require, in any form, alteration of the sentence imposed. In my opinion the application should be refused.

THE CHIEF JUSTICE:  I agree.

HELMAN J:  I agree.

THE CHIEF JUSTICE:  The application is refused.