The Queen v Gee[1998] QCA 321

COURT OF APPEAL

McMURDO P

McPHERSON JA

SHEPHERDSON J

BRISBANE

DATE 18/09/98

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal against a sentence which is claimed to be manifestly excessive.  The applicant represented himself with the assistance of his father.  The applicant pleaded guilty on 1 July 1998 to four indictments containing a total of 19 counts of housebreaking, six counts of stealing, two counts of entering a dwelling with intent and one count of burglary.

He was sentenced on the offence of burglary to four and a half years imprisonment;  on the offences of housebreaking to four years imprisonment;  on the offences of entering a dwelling house to three and a half years imprisonment;  and on the offences of stealing 12 months imprisonment.  All sentences were to be concurrent with each other and concurrent with the sentences currently being served.

In addition he was recommended for release on parole after serving 15 months of that sentence.  The applicant is now 19 years of age and was 18 at the time he committed these offences.  He has a significant criminal history.  In April 1997 he was fined on a minor drug charge.  Later that month he was placed on probation without conviction for two years on one count of receiving, with special conditions for receiving treatment for heroin addiction.

He was ordered to perform 240 hours community service without conviction for one offence of unlawful use of a motor vehicle.  On 12 June 1997 he was dealt with for a breach of the Bail Act when he was convicted of being found in an enclosed yard without lawful excuse and was fined without conviction.

On 8 August 1997 a breach of probation order was proven but no further action was taken.  On 7 October 1997 a further breach was proven and he was resentenced for the original offence being fined $500 with a conviction recorded. 

He therefore has had the benefit of lenient non-custodial orders, particularly aimed at helping him with his heroin addition, in the past.  On 7 November 1997 he pleaded guilty to 13 charges of breaking and entering a dwelling house with intent, two charges of entering a dwelling house with intent, 14 charges of stealing, and one charge of unlawful use of a motor vehicle, involving a total of $13,500 worth of property.

These offences occurred between 1 May 1996 and 30 January 1997, that is before he was placed on probation and given community service.  He was sentenced to a total of three years imprisonment with a recommendation that he be considered for parole after serving 10 months of that sentence, and that he receive counselling and treatment to address his drug addiction.

The offences the subject of this application occurred between 20 January 1997 and 10 September 1997, obviously pre-dating his current sentence he is serving.  The offences involved property of a value of about $30,000.  Most of the housebreakings were committed upon elderly female pensioner complainants, all over 60 years of age, most over 75 years of age and one as old as 88.

The applicant deliberately targeted these women and on some occasions the complainants were at home when their houses were broken and entered.  Three of the complainants' homes were broken into on more than one occasion.

Many of these offences were committed whilst the applicant was on probation -  before the Courts were aware of breach of that probation - and on bail on similar offences.  The applicant was fully co-operative with police and made admissions without which it would have been difficult for him to have been charged with most of these matters.

He drove around with police indicating premises which he had broken and entered.  His plea was timely.  In early 1997 he had been keeping bad company and became a heroin addict.  He has supportive family and his unfortunate parents attended the District Court and this Court and have encouraged him in the past with rehabilitation attempts.  They will no doubt continue to encourage him in the future.  They have my sympathy and support.

Because of negotiations between the Crown and the defence it was impossible for all these matters to be dealt with together in the District Court on 7 November 1997.  This is not a case where had these matters been dealt with on 7 November 1997 with those property offences in the District Court, the same sentence of three years would have been imposed.

These offences are much more in number and involve a further $30,000 worth of unrecovered property.  Significantly, many of these offences occurred whilst the applicant was on probation and bail.  The serious aspects of these offences are that they were committed upon elderly female complainants.

The effect of the sentence imposed on 1 July 1998 is that if all matters were dealt with together on 7 November 1997 he would have received a sentence of five years and two months imprisonment with a recommendation for parole after serving 22 months of that sentence.

The applicant is still very young, just 19 years of age, and was only 18 when he committed these offences.  He was co-operative and has pleaded guilty and is making efforts to deal with his heroin addiction.  He has however had the benefit of lenient community based orders in the past and has not been able to take advantage of those orders.

Many of these offences occurred, as I have said, whilst he was on probation and bail, and a particularly abhorrent feature of the crimes is that he, with others, deliberately preyed on vulnerable elderly female householders.

When all these factors are considered it cannot, in my view, be said that the effect of the sentences imposed in the District Court on 1 July 1998 in respect of these matters was to make the sentences manifestly excessive.  Had I been the sentencing Judge I would have imposed a slightly lesser head sentence and a slightly earlier recommendation for parole to reflect his age, extensive co-operation and other mitigating factors, but that is not the test here. The applicant has failed, in my view, to show the sentence imposed was manifestly excessive.  I would dismiss the application.

McPHERSON JA:  I agree.

SHEPHERDSON J:  I agree.

THE PRESIDENT:  The order of the Court is the application is refused, and the Court wishes you well in your attempt at rehabilitation.