The Queen v Orchard[1998] QCA 249

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No.  177 of 1998

Brisbane

[R. v.  Orchard]

THE QUEEN

 v.

GABRIEL VINCENT ORCHARD

 Applicant

Thomas J.A.

Mackenzie J.

Helman J.

Judgment delivered 28 August 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL - Appeal against sentence - effect of sentences upon obligation to serve imprisonment in respect of cancelled parole period - whether unduly oppressive.

R v Coss (CA 262 of 1994, 15 March 1995)

R v Dinaro (CA 323 of 1997, 21 October 1997)

Counsel:  The applicant appeared on his own behalf

Mr T Winn for the respondent                            

Solicitors:  The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

Hearing Dates: 6 August 1998

19 August 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 August 1998

1. The applicant seeks leave to appeal against sentences imposed for a variety of offences committed by him in June, August and October 1997: two offences of housebreaking, one of false pretences, one of dangerous driving, one of breaking and entering premises and committing an indictable offence, one of being in premises and committing an indictable offence, one of entering premises and committing an indictable offence, two of obstructing police, and two of possession of tainted property. Sentences resulting in imprisonment for fourteen months for the offences on premises committed in October 1997 while the applicant was on bail in respect of other charges, were made cumulative upon the other sentences, the longest of which were imprisonment for eighteen months. The net effect of the sentencing procedure with respect to the eleven offences that have been mentioned was a penalty of imprisonment for two years and eight months.
2. The applicant was 24 years old when he committed all but three of the offences, the first three having been committed shortly before his twenty-fourth birthday. He has a significant criminal history including two offences of assault occasioning bodily harm, street offences, housebreaking offences, armed robbery in company using personal violence (for which he was sentenced to imprisonment for four years in 1993), obstructing police, and some drug related offences. In addition he has a very irresponsible and worrying history of traffic offences including drink driving.
3. It is not necessary to restate the circumstances of the offences in detail. Following the first housebreaking offence the complainant returned to find her home completely ransacked with household items scattered over the floor. Eggs had been splattered on the lounge room walls and curtains. The charges of obstructing police arose out of his interception after committing the second housebreaking offence.
4. The dangerous driving count involved driving that lasted for about five minutes in the Stafford area while the police chased the applicant. He cut approximately twelve corners, went through red lights and was estimated to have travelled at speeds up to 140 kilometres per hour. For parts of the route traversed by him traffic was moderate to heavy. The police vehicle was wrecked in the chase and serious injury was caused to its driver.
5. Other counts arose from the pawning of stolen property, taking money from the bar area of a hotel, entry into premises of tyre companies on two occasions on one of which he took money from the till.
6. The learned sentencing Judge intimated that he would recognise the effect of the plea of guilty by diminution of the head sentences rather than by recommendation of parole. It was appropriate that the sentences be framed in that way. The main question is whether the sentences actually imposed are in the circumstances excessive.
7. One of the principal submissions on behalf of the applicant, both here and below, was that he had been driven to commit the offences by economic necessity. Whatever weight that submission might carry in a particular case, it should be regarded with considerable circumspection here, particularly having regard to the gratuitous damage inflicted upon the property of a victim, and of course it hardly rates as an excuse for the dangerous driving or various other offences.
8. Another submission is that the learned sentencing Judge failed to pay due regard to a report supplied by a psychologist, Mr Perros. That report, on analysis, provides little assistance to the applicant, despite its sympathetic approach.
9. A further submission suggests that the learned sentencing Judge erred in stating that the applicant lacked remorse. It is true that the applicant confessed to some counts in respect of which he was not a suspect. However, having read the applicant’s submissions and heard his oral submissions, we do not detect any level of genuine remorse and do not think that His Honour erred in this respect.
10. In all the circumstances we do not regard the imposition of an overall sentence of two years and eight months for all of the above criminal conduct committed over a period of four months in 1997, some of it in breach of bail undertakings, to be manifestly excessive.  However during the course of the appeal the applicant raised questions concerning the effect that these sentences might have upon his overall obligation to serve imprisonment in respect of other offences, which he was already obliged to serve at the time the present sentences were imposed (15 May 1998).  It is not now necessary to set out all the rather complicated circumstances of his return to custody on 13 October 1997 by reason of his conviction for an offence committed within the parole period of the four year sentence imposed on 27 May 1993, in respect of which he had been paroled on 20 October 1995.  It would seem that upon his return to custody on 13 October 1997, he was obliged to serve the balance of the previous sentence (approximately one year and seven months) and a cumulative term of three months made necessary by his conviction for an offence under the Bail Act.  This means that when he was sentenced for the present offences on 15 May 1998, he had already served about seven months of head sentences totalling one year and ten months.  It can be seen then that the present sentences were imposed concurrently with old sentences which had approximately fourteen or fifteen months to run.  The net effect of the imposition of the additional sentences was to increase his existing head sentences by approximately one year and five months.  The Court was however informed that the additional effect of the present sentences, according to Corrective Services’ records, was to add one year and 247 days to the existing head sentences.  That does not reconcile with the primary information supplied to this Court concerning the sentencing procedures.  If the Corrective Services’ authorities have made an administrative error, that can be corrected by other processes.  It is enough to indicate that even on the longer estimate we do not consider that the sentences could be said to be manifestly excessive.
11. In these circumstances it does not seem that the imposition of these sentences has led to an unduly oppressive effect having regard to the effect of earlier sentences which include the requirement that he serve the balance of a cancelled parole period (compare R v Coss CA 262 of 1994, 15 March 1995; R v Dinaro CA 323 of 1997, 21 October 1997).  The overlapping of the present sentences with the unexpired part of the previous ones avoids any undue oppression of the applicant, and the present sentences fall within a proper exercise of the sentencing discretion.
12. The application should be refused.