The Queen v McMahon[1998] QCA 57

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.433 of 1997

Brisbane

[R v McMahon]

THE QUEEN

v.

JUSTIN BRIAN McMAHON

(Applicant)

McPherson J.A.

Davies J.A.

Shepherdson J.

Judgment delivered 3 April 1998

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED. 

CATCHWORDS: CRIMINAL – application for leave to appeal against total effective sentence of 12 year term of imprisonment for nine counts of armed robbery, nine counts of unlawful use of a motor vehicle with circumstances of aggravation and two counts of stealing – whether the recommended eligibility date for parole was manifestly excessive – ss. 10, 166, 190 Corrective Services Act 1988 (Qld)

Coss (C.A. No 262 of 1994, 15 March 1995).

Counsel: Mr J.  Hunter for the applicant

Mr M.C. Chowdhury for the respondent

Solicitors: Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent 

Hearing date: 20 March 1998

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 3 April 1998

I agree that this application should be refused for the reasons given by Davies J.A.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 3 April 1998

The applicant was convicted on his own plea in the District Court at Brisbane on 31 October 1997 on nine counts of armed robbery, nine of unlawful use of a motor vehicle with circumstances of aggravation and two of stealing.  On each of the armed robbery counts he was sentenced to 12 years imprisonment, on each of the unlawful use counts he was sentenced to four years imprisonment and on each of the stealing counts he was sentenced to 12 months imprisonment, the sentences to be concurrent with one another but cumulative upon sentences which he was already serving.  A recommendation was made that he be eligible for consideration for parole on 15 January 2003.

The applicant seeks leave to appeal against the total effective sentence of 12 years imprisonment with the recommendation to which I have referred but it was not contended that the 12 year term was manifestly excessive, the application being confined to a submission that the recommended eligibility date for parole was manifestly excessive having regard principally to three matters;  the applicant's age, a psychologist's opinion from which, it was submitted, it should be inferred that there were some prospects of rehabilitation and the applicant's co-operation with the police including but not restricted to his plea of guilty.

The applicant is 23 years of age having been born on 19 December 1974.  At the time of the commission of these offences, which were on various dates between 7 August 1996 and 9 February 1997 he was 21 or 22.

He has a substantial criminal record commencing in the Children's Court in 1990.  During that year he was convicted on four occasions, one for carrying a firearm and three for unlawful use of a motor vehicle.  In 1991 he was again convicted of unlawful use of a motor vehicle.  In 1992 he was convicted on two occasions for unlawful use of a motor vehicle, the first involving two charges, the second involving five charges.  On the second occasion he was also convicted on three charges of going armed in public, one of breaking, entering and stealing and one of wilful damage in the nighttime.  Also in that year he was convicted on three charges of discharging a weapon into private property and one of possessing a concealable weapon.  By this time he had become an adult.  Then on 5 November 1993 he was convicted on five counts of unlawful use of a motor vehicle, five of stealing, one of dangerous driving, one of wilful damage in the nighttime, one of breaking, entering and stealing, three of wilful and unlawful damage to property and one of dangerous driving causing grievous bodily harm.  On the last of these convictions he was sentenced to four years imprisonment.  He had previously undergone periods of custody for up to 18 months.  Whilst in custody for that offence he escaped in 1995 for which he was given an additional four months imprisonment.  He was at large for only a few days.

The applicant was admitted to parole on 5 January 1996 after serving half of the term of four years and four months.  He committed the first of the offences the subject of this application in August of that year.  That was an offence of unlawful use of a motor vehicle with a circumstance of aggravation, that being damage to the ignition.  He was apprehended in the vehicle, arrested and charged.  He was on bail in respect of that offence when he committed the balance of the offences between 28 December 1996 and 9 February 1997.  He was thus on parole when he committed the first of these offences and on parole and on bail when he committed the remainder.

The most serious of the remaining offences were of course the nine armed robberies.  They were planned and followed a pattern.  All were of video shops, chosen because they were more vulnerable than financial institutions.  On each occasion vehicles were stolen to facilitate the robberies.  On two occasions property was stolen from the vehicles, these constituting the charges of stealing.  Although the robberies netted a total of only $7,264 the total loss by way of damage to property and property stolen was $22,816.  At least one other person was involved in each of the robberies.  According to the applicant that was a man called Carkeet who entered the shops, menacing the shop attendant with a sawn-off shotgun.  The applicant was the driver of the getaway vehicle.  For his part in these ventures he received small amounts of money or heroin.  He was a heroin addict.  Although the shop assistants were, as I have said, menaced with a shotgun, there was no violence involved in any of the robberies.

The applicant was first interviewed in respect of these offences when another of his fellow offenders in one of the armed robbery offences implicated the applicant and Carkeet.  When interviewed the applicant admitted to being involved in five of the robberies but refused to  name his co-offender.  This was on 3 March 1997.  He was arrested, charged and remained in custody until 5 March when he admitted to police that he was involved in the other robberies and on this occasion provided a statement implicating Carkeet.  However the police either already knew or suspected that Carkeet was the other person involved.  Carkeet pleaded not guilty and the applicant declined to give evidence against him at his committal.  However the applicant must, as contended for on his behalf, receive credit, not only for his plea of guilty but for his co-operation to the extent of admitting his involvement in some of the offences in which it appears that there may not otherwise have been sufficient evidence against him.

It is true that the applicant is still a very young man.  On the other hand his criminal record since 1990 has been one of persistent offending involving offences of dishonesty and, it would seem, of increasing seriousness.  Moreover the commission of the first of these offences when only seven months into his parole period and the remainder and more serious of them after he had been granted bail in respect of that offence does not indicate any good prospect of rehabilitation.  Unfortunately, as I have mentioned, he has a heroin addiction and no doubt the offences were committed to feed that addiction.  But whilst he remains addicted his prospects of rehabilitation from a life of crime seem slim.  Notwithstanding that, Mr. Grantham, a psychologist who has interviewed the applicant and others, was guardedly optimistic about his prospects of rehabilitation.  The applicant plainly has some good qualities and I would accept that, if he can overcome his heroin addiction there is some prospect that he can yet become a useful member of society.  He told Mr. Grantham that he was not using drugs in prison, but we have heard in this Court on many occasions that they are freely available there.

Based on a report from Queensland Corrections dated 28 October 1997 the learned sentencing Judge accepted that his current release date on the sentences which he was then serving was 19 November 1999.  It is not entirely clear how that date was calculated.  His four year sentence for dangerous driving causing grievous bodily harm ran from 5 November 1993.  To that had to be added two sentences each of four months, one, to which I have already referred, imposed on 27 June 1995 for escaping from custody, the other imposed on 14 May 1997 for breaches of his bail.  He had also been sentenced to one month imprisonment in the Magistrates Court on 31 January 1994 but the above report treats that as being a concurrent sentence and we have no evidence to the contrary.  However that report indicates another sentence of six days imprisonment imposed on 18 October 1995 for a traffic offence which was cumulative.  To that total period of four years eight months and six days must be added the period between the applicant's release on parole and his recommencing to serve the unexpired term of imprisonment for it appears from the above report that his parole was cancelled on 14 May 1997:  Corrective Services Act 1988 s. 190.  That period was from 5 January 1996 to 3 March 1997.  On my rough calculation that brings the total term of imprisonment required to be served under sentences which the applicant was serving at the time the present sentences were imposed up to approximately 9 September 1999.  The report indicates that the date of full time discharge is 19 November 1999.  Although I cannot reconcile those two dates the difference is so small as not to be significant in the circumstances of this case.  Like the learned sentencing Judge I am prepared to accept the date in the report of 19 November 1999.

On that basis, when to that is added the cumulative sentence of 12 years, the subject of this application, imposed on 31 October 1997, the "term of imprisonment to which the prisoner was sentenced" within the meaning of s. 166 of the Corrective Services Act is one commencing on 5 November 1993 and ending on 19 November 2011:  see the definition of "term of imprisonment" in s. 10.  Half of that term would end on 12 November 2002.  The learned sentencing Judge's recommendation therefore postpones by about two months the applicant's eligibility date under the Corrective Services Act.

However, as Thomas J. noted in Coss C.A. No. 262 of 1994, judgment delivered 15 March 1995, the effect of ss. 10 and 166 of the Corrective Services Act upon cumulative sentences can have some curious results.  The present case is an example of that.  If the applicant had not been serving a term of imprisonment for previous offences when he committed the offences the subject of this application, upon which the sentence of 12 years had to be made cumulative, the effect of s.166 upon a sentence of 12 years imprisonment imposed on 31 October 1997 would have resulted in an eligibility date six years later, that is on 31 October 2003.  However, because he was already in prison in respect of earlier offences, and that sentence had to be imposed cumulatively, the effect of that section would have been that he would become eligible almost a year earlier, on 12 November 2002.  Even his Honour's recommendation permits his eligibility for parole about nine months before the halfway point of a sentence of 12 years taking effect from 31 October 1997, the date on which it was imposed.

Looked at in the light of the halfway point for a sentence of 12 years commencing on the date this sentence was imposed, 31 October 1997, rather than the date on which it will take effect, the recommendation made here is in my view a generous one.  It takes into account fully the applicant's youth, his unfortunate life which led to his heroin addiction, his co-operation with the police and his prospects of rehabilitation.

I would therefore refuse the application.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 3 April 1998

I have read the reasons for judgment prepared by Davies JA and I agree that for the reasons stated by him this application should be refused.

I would add though that the effect of s. 190 of the Corrective Services Act combined with the definition of “term of imprisonment” in s. 10 of that same Act has resulted in the applicant being treated as having served the whole of the terms totalling 4 years 8 months and 6 days before the cumulative sentence of 12 years begins to operate.

The end result is that the “term of imprisonment” covers a period of 18 years and half-way through this term is 12 November 2002.

The result is as Davies JA has said “curious”.