R v F[1999] QCA 131

COURT OF APPEAL

McMURDO P

PINCUS JA

THOMAS JA

CA No 29 of 1999

THE QUEEN

v.

SIMON CHARLES FISHERApplicant

BRISBANE

DATE 16/04/99

JUDGMENT

PINCUS JA:  The applicant, who was born on 14 April 1982, applies for leave to appeal against sentence, the offence in question being that of entering a dwelling and stealing.  This offence was committed in August 1998 when the applicant was 16 and he was sentenced on 29 January this year.  The applicant and another person entered the window of a house and stole jewellery said to be worth about $15,000 most of which was recovered.  An insurance company paid out $5,000 in compensation for the unrecovered jewellery. 

The applicant pleaded guilty but had not, earlier than that, been cooperative with the police.  He gave them two false names.  It should be noted that there was no charge of breaking although the owner said a window had been forced.  The matter must be approached on the basis that the applicant entered the premises through an open window.

There was a pre-sentence report stating that the applicant's history of compliance with community-based orders had been poor, that he had been breached for re-offending on three of his previous probation orders and breached for non-compliance with two of his community service orders.  These orders were imposed in respect of previous offences, which were fairly numerous.  There had been six probation orders made and six orders for detention.  The offences previously committed included breaking and entering, robbery with violence in company, stealing, assault, wilful damage and receiving.

The offences the primary judge, Judge Brabazon Q.C., had to consider were principally the entering and stealing but there was also a charge of failing to give the correct name and address.  Judge Brabazon Q.C. imposed a sentence of six months detention in respect of the entering and stealing charge. 

It was argued below on behalf of the applicant, by counsel who appeared at that stage, that the offence in question which was committed on 30 August 1998 should be regarded as part of a series of offences dealt with by Judge Pack on 25 September 1998.  The purpose of that argument was to convince Judge Brabazon Q.C. that Judge Pack would not have imposed any additional sentence if the present matter had been before him.  The offences with which Judge Pack dealt on 25 September 1998 were unlawful use of a motor vehicle, five charges of wilful and unlawful damage, three charges of stealing, an assault, three charges of entering a dwelling and committing an indictable offence and a charge of receiving.  In respect of those offences his Honour imposed an order for probation of two years.  I note that the offences themselves had been committed over a substantial period of time, some years. 

Judge Brabazon QC, the primary judge in the present case, said that the applicant was not a suitable candidate for orders of the kind made by Judge Pack and that the offence before Judge Brabazon was more serious than the matters dealt with by Judge Pack. 

On behalf of the applicant counsel, Mr Vasta Q.C., has submitted to us that the proper approach is that dictated by remarks made in Mill (1988) 166 C.L.R. 59.  There the High Court said in effect that the proper approach which the sentencing judge in that case should have taken was to "ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and been sentenced at the one time".

In Mill the three offences were all committed within a period of weeks, two in Victoria and one in Queensland.  Although Mill referred to offences committed in different States, it is accepted that the same principle applies where all the offences are in the one State and it can apply where the offences were committed over substantially longer periods than were dealt with in Mill.  This is clear, apart from other cases, from the High Court's decision in Postiglione (1997) 189 CLR 295 especially at 304, 308 and 341.  In that case the totality principle was regarded as relevant even in respect of offences committed by Postiglione in Italy some years before. 

The judge gave two reasons for failing to accede to the submissions made on behalf of the applicant below and I have mentioned them, that the applicant was not a suitable candidate for probation orders and that the offence was more serious than the other matters dealt with by Judge Pack.  Mr Vasta has criticised the latter finding on the basis that the fact that the amount involved in this case may have been greater or was presumed to be greater than that in the previous cases did not necessarily make it more serious.  It is my view, however, while the criticism is not without some force, that the principal thing which concerned his Honour was that he had a serious offence before him and that community-based orders did not seem to be appropriate.

The situation which was dealt with in Mill was one where all the offences in question had occurred within a short time and there was no suggestion that anything of significance had happened between the two sentences.  Here, although the offence in question was committed within the time period dealt with by Judge Pack, something of significance did happen between the two sentences.  That is, it became clear, if it had not been clear earlier, that the community-based order which His Honour Judge Pack had made was not likely to work.

In my opinion a second sentencing court is clearly not confined, in considering what would have happened if the first sentencing court had had all the matters before it, to facts which had occurred at the earlier date.  Where, as in the present case, the second sentencing court has to deal with an offence which had occurred and was being processed before the first sentence was imposed, it may sometimes indeed often be proper to order no additional punishment.  In this case Judge Brabazon, who heard the matter months after Judge Pack had dealt with the other offences, had the advantage of the report dated 10 January 1999 which recommended against community-based orders.

Mr Vasta Q.C. has candidly conceded that apart from the criticism which he makes based upon the suggestion that Judge Brabazon's sentence was merely a re-visiting of Judge Pack's offences, the penalty imposed, of six months, could hardly be criticised.

In my opinion, if one comes to the basic question of whether Judge Brabazon's order was manifestly excessive, the answer must plainly be no; it is not correct, in my respectful view, that the judge was obliged to ignore the intervening circumstance of revelation of the pointlessness of a community-based order.  I would therefore dismiss the application.

McMURDO P.:  I agree.

THOMAS JA:  I agree.

McMURDO P.:  The order is the application is refused.