Attorney-General v Chapman[1998] QCA 476

COURT OF APPEAL

de JERSEY CJ

THOMAS J

DERRINGTON J

CA No 164 of 1998

THE QUEEN

v.

MARK EDWARD CHAPMAN  Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Applicant

BRISBANE

DATE 17/07/98

JUDGMENT

THOMAS J:  The respondent was convicted in the District Court at Southport of 53 offences of dishonesty.  They comprised one of burglary, 10 of unlawful use of motor vehicles, 22 of stealing, one of attempted stealing, two of wilful damage and 17 of receiving.

Two indictments were presented, the first of which included 25 offences and the second 28.  They involved two separate series of criminal activity.  The first 25 offences occurred in September, October 1995 ending with the respondent's arrest in December of that year.  The remaining offences were committed between August 1996 and February 1997 while the respondent was on bail for the first series of offences. 

He is now 34 years old.  The learned sentencing Judge imposed a sentence of five years' imprisonment and went on to order that it be wholly suspended and that the operational period be five years.  The respondent has a serious criminal history spanning 12 years from 1981 to 1993.  It includes offences similar to the present as well as offences relating to violence, drugs, driving and breaches of Court orders. 

On six separate appearances he has been sentenced to terms of imprisonment ranging from four months to a combination reaching five years and four months.  Perhaps, his most serious previous appearance before a Court was on 12 December 1991 when he pleaded guilty to robbery and other property offences when numerous other offences were taken into account. He was then sentenced to a minimum term of four years with respect to the major charge.

The respondent's 53 offences resulted in a net loss of $28,937.00 to various complainants.  There is no prospect of any restitution.  The Crown accepted, and the evidence clearly shows it to have been the case, that he was motivated entirely by the need to feed a drug habit. 

The first group of offences were brought to light and perhaps, contributed to, to some extent by his association with a police undercover agent.  Five counts were identified as the subject of direct sales by him of suspect property to the undercover agent.  Upon his apprehension he volunteered confessions to 20 other counts which were eventually brought on the first indictment.  Without his cooperation it is unlikely that the police would have discovered his involvement.  Unfortunately, whilst on bail between August 1996 and February 1997 he proceeded to commit the 28 similar offences that are listed in the second indictment.

With respect to those matters he was implicated by a combination of police work including fingerprints, eye witnesses and ultimately a police search of his premises.  On this occasion he endeavoured to avoid his responsibility at first but eventually confessed his guilt.  In the event there have been early pleas of guilty.

The learned sentencing Judge in this somewhat unusual case was much impressed by the applicant's change in attitude and life style after he was charged with these offences.  His Honour declared that were it not for the personal circumstances of the respondent he would have imposed seven years' imprisonment with a three year non-parole period.

Had His Honour imposed such a sentence it would have been consistent with sentences which have been approved by this Court or, at least, which this Court has decided not to disturb in cases such as Queen v. Barnes, Court of Appeal 296 of 1993, 10 November 1993.  It is therefore necessary to examine the special factors operating in this case in order to see whether the totally suspended sentence of five years fell within the range of a proper sentencing discretion.

It may be noted that the respondent's solicitor conceded several times before His Honour that some "real gaol time" was inevitable in the circumstances.  His Honour, however, declared:

"I decided to sentence you on the basis that you had embarked upon your own reformation and the community can only lose by your lengthy imprisonment.  You also have the substantial advantage of having a police officer, your father-in-law looking over your shoulder for the future which reduced the likelihood of a relapse into your former life of persistent crime."

His Honour further noted the early guilty pleas, cooperation with the police and a report by a clinical nursing consultant suggesting that if the respondent were to be incarcerated he would be taken off methadone treatment and that his cardiac condition might be adversely affected by this.

There was also the circumstance that after being charged he married the woman with whom he had been associating and became a good stepfather to her three children and, indeed, fathered a further child.  Unfortunately, this child suffers from a congenital eye disease and is effectively blind and requires extensive care.  The respondent has conscientiously and usefully provided care of this kind and his removal from the scene would undoubtedly exacerbate the problems of the family.  That, of course, cannot be an overwhelming circumstance but it needs to be noted in the context of this particular case.

He has also become active in a Church group called the Hope and Victory Christian Centre.  These activities have lead to impressive statements from Pastor Burch indicating that he accepts that the respondent has fully embraced Christianity and noting the extensive way in which he has involved himself in the community work that the Church performs.

His father-in-law also expresses the opinion that the respondent has turned the corner and states "the reform that Mark and Kelly have shown and their involvement in the church and their abstinence from drug taking and the welfare of the children" are referred to as grounds for leniency.  His Honour considered that the sentence he imposed would apply pressure on the respondent to continue his reformation.

I have endeavoured to state as fairly as possible the unusual and mitigating factors of a personal kind that operate in the present case.  However with considerable respect for the rehabilitative aims of the learned sentencing Judge it would seem that he has permitted that goal to outweigh other important factors in the sentencing process including the aspect of deterrence and the aspect of consistency.

When one considers the number and scope of the offences, the number of uncompensated victims and the fact that their commission to feed a drug habit is not as such a mitigating factor and the extensive previous criminal history, a totally suspended sentence in my view is simply not an option.  In particular the important aspect of deterrence to others is substantially lacking.  At the same time this respondent's personal circumstances are unusually persuasive and they justify a reduction in what would otherwise prima facie call for a sentence only slightly less than that in Barnes where the result was seven years imprisonment with a parole recommendation after three years.  In the present case I think that the respondent's interests will best be served and those of society adequately protected by fashioning a sentence within the limits of a sentence which can be suspended so that he may be assured of release after a finite period and not be subject to the vagaries of determination by a parole board.

With respect to the offences of burglary, unlawful use of a motor vehicle and receiving the sentences below should be set aside and replaced by sentences of five years imprisonment.  Those sentences should be suspended after 18 months.  The operational period should be five years.

With respect to the remaining counts, namely those of stealing, attempted stealing and wilful damage I would substitute sentences of 18 months simpliciter.  Accordingly the appeal should be allowed and the orders that I have proposed be substituted.

THE CHIEF JUSTICE:  I agree. DERRINGTON J:  I agree and would like to emphasise that the sentence that is now to be imposed reflects as far as the Court can the laudable attempts at rehabilitation by the respondent; but the position is simply beyond a total suspension of this sentence.

THE CHIEF JUSTICE:  The orders will be as indicated by

Mr Justice Thomas and there will be an order that a warrant issue for the apprehension of the respondent to lie in the Registry for seven days before it is executed.