R v Munt[1999] QCA 141

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 444 of 1998

Brisbane

[R v. Munt]

THE QUEEN

v.

GAVIN NOEL MUNT

(Applicant)

Pincus J.A.

Thomas J.A.

Shepherdson J.

Judgment delivered 23 April 1999

Separate reasons for judgment of each member of the Court; Thomas J.A. and Shepherdson J. concurring as to the orders made, Pincus J.A. dissenting in part

APPLICATION FOR EXTENSION OF TIME TO APPEAL AGAINST CONVICTION REFUSED.

APPLICATION FOR LEAVE TO EXTEND TIME TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 23 April 1999

1. The applicant, who represented himself at the hearing in this Court, filed a notice of application for an extension of time within which to give notice of appeal or notice of application for leave to appeal.  The ground stated was that "I failed to be seen by solicitors at the Legal Aid Office until 17 November 1998, at which time I was out of the prescribed time limitation".  This notice was received on 2 December 1998, the sentence having been imposed on 7 October 1998.  In the Form III filed by the applicant notice is given that he desires to appeal against conviction and sentence;  but the ground given relates only to sentence:  "Sentence imposed in all the circumstances is manifestly excessive".  We heard argument and reserved judgment on the basis that we would, if we extended time, go on to deal with the substance of the case.

2. The convictions after a trial were for three offences, breaking, entering and stealing; breaking and entering a dwelling house with intent;  and stealing; the sentences imposed were 5 years, 5 years and 2½ years respectively.  When the matter was called on in this Court the applicant complained that the sentence was unfair because he was innocent, meaning "set up".  He alleged that the evidence against him was fabricated.  He explained that on counsel's advice he gave no evidence in denial of the Crown case.  The applicant told us in effect that he was convicted not because of any deficiency in his legal representation, but because the case against him was untrue.

3. In my opinion no basis appears for the making of an order extending the time within which to appeal against conviction.  It appears from the applicant's explanation of his attack on the conviction that, to determine whether or not the conviction is good, it would be necessary to let in evidence from the applicant;  as I have said, he gave no evidence at the trial setting out the facts underlying his assertion that the case against him was fabricated.  In my opinion, only in most unusual circumstances would this Court take such a course, i.e. that of letting in on appeal evidence in denial of the Crown case from the applicant himself who gave no evidence below.  I would dismiss the application for an extension of time, so far as it relates to an appeal against conviction.

4. The application in respect of the sentence has more substance.  The offences were committed on 4 March 1996 by the applicant and co-offenders, Anderson and Miller.  This Court gave judgment on 11 September 1998 (C.A. No. 90 of 1998) in Anderson's unsuccessful appeal against conviction and successful application for leave to appeal against sentence and the reasons given in that case explain the circumstances:  that the value of the property stolen was between $85,000 and $90,000, most of which remained unrecovered;  that the property taken included many guns;  that the offences involved the opening of safes and forcing of very secure doors, followed by the ransacking of a house.  The reasons describe the case as a "serious example of the offences of house-breaking and breaking, entering and stealing".

5. At the applicant's sentencing below, counsel who appeared for him submitted, in effect, that the evidence showed that Anderson was more culpable than the applicant.  The basis of this submission was principally that the inference could be drawn against Anderson, but not against the applicant, that there was a purpose of "'vending' [guns] to other criminally minded persons to assist them in crimes involving violence";  the quotation is from the reasons of Ambrose J. in this Court, when dealing with Anderson's case.  Also, counsel pointed out in effect that although the applicant had a longer criminal history than Anderson, the applicant had nothing in his record comparable in seriousness with one of Anderson's offences, an armed robbery in company committed in 1992, which produced, in 1993, a 5 year sentence;  6 months after release on parole Anderson committed the subject offences.  The primary judge, as I understand his Honour's reasons, accepted that Anderson was the more culpable offender.

6. Munt's 5 year sentence from 7 October 1998, with the advantage of an allowance of 14 days pre-sentence custody, is to be compared with the sentence ultimately imposed by this Court on Anderson, which was 6 years from 27 February 1998.  Munt was due for release under existing sentences on 22 January 1999, so that his sentence amounted to an extra 4 years 8½ months.  Anderson's existing sentences were due to conclude on 30 April 2000 and the sentence imposed in this Court made his final release date 27 February 2004;  so that his sentence was equivalent to an extra 3 years and 10 months - 10½ months less than Munt.  As against that, Anderson's eligibility for parole falls about 11 months later than Munt's.

7. The result is, then, that considering the cases in terms of equivalent cumulative sentences, Munt's head sentence amounts to a significantly longer period than Anderson's, but he has a more favourable parole position;  whether that will in the end advantage Munt is perhaps doubtful.  The reason why Anderson received some relief from the effect of the sentence below by this Court's judgment was in part the totality principle, as discussed in such cases as Coss (C.A. No. 262 of 1994, 15 March 1995).  The difficulty about the present case is that Anderson has been given a sentence which involved a lesser addition to the period he was otherwise liable to serve than does Munt's sentence, imposed after Anderson's appeal was decided.  To some extent the difference is explained by the fact that Munt's existing sentences were to conclude before Anderson's;  the dates are 22 January 1999 and 30 April 2000 respectively.  But it does not appear to me that that difference of 1 year and 3 months is sufficient to account for the discrepancy to which I have referred.  Sometimes the parity principle can conflict with that of totality, as is illustrated by Postiglione (1997) 189 C.L.R. 295.  This can occur when, for example, one of two similarly culpable co‑offenders has a much greater existing liability to serve imprisonment than has the other.  In the present case there does not appear to me to be any real difficulty in paying proper respect to the parity principle, except that doing so might appear to punish the applicant too lightly. Although the applicant himself has expressed no complaint about the relationship between his sentence and Anderson's, in my view the matter must be looked at objectively, and looked at in that way the hard fact is that the lesser offender has received a head sentence which involves greater additional punishment than that meted out to the more culpable offender.

8. The judge below appeared to intend to impose on the applicant a lighter sentence than that which had been fixed in this Court, a month before, for Anderson.  He gave the applicant 5 years concurrent as against Anderson's 6;  but as I have explained, because of the sentences each had to serve already, the applicant's extra punishment was significantly longer than Anderson's.  I cannot think that this was deliberate and would reduce the applicant's sentence by a year, to make it a little less, in its practical effect, than Anderson's.  Were it not for this consideration of parity, I would not disturb the applicant's sentence.

9. I would grant the application so far as sentence is concerned, grant leave to appeal, and allow the appeal by reducing the sentences on the first two counts to 4 years from 7 October 1998;  the sentences should be otherwise confirmed.  The application for an extension of time to appeal against conviction should be refused.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 23 April 1999

1. I agree with what Pincus JA has written in relation to the application concerning an extension of time to appeal against conviction.

2. In relation to sentence, having regard to the seriousness of the conduct and to the prior criminal record of the applicant, prima facie the five year sentence was appropriate.  The only point which could possibly be raised against it is the question of parity with Anderson's sentence.  Anderson was sentenced to six years, and Munt to five years, in recognition of the fact that Munt was less involved in the "vending" of the stolen firearms.

3. I have the advantage of having read the draft reasons of Pincus JA in which a comparison is made of the differences between the respective head sentences and the terms of existing sentences which each offender was already serving at the time of his sentence.  On this basis Anderson is seen to have been given an extra three years ten months while Munt is seen to have been given an extra four years eight and a half months.  On the other hand Anderson's eligibility for parole would fall about eleven months later than Munt's.

4. With respect I do not think that this is a satisfactory basis for a determination of disparity.  Anderson's sentence was very much affected by the circumstance that his offence had reactivated the full balance of an earlier five year term, upon which he was on parole when the present offences were committed.  Upon cancellation of parole he became obliged to serve the remaining two years and eight months of that sentence.  In order to avoid the undue oppression that would  arise, this court in Anderson's case (CA No 90 of 1998, 11 September 1998) deliberately framed a sentence with a substantial overlap between the old sentences and the new.  Anderson's recent offences had already been the cause of considerable disadvantage to him before he was actually sentenced on them.  For a valid comparison between Anderson's sentence and Munt's sentence to be made, the total criminality of each offender, and the total sentences of the court in respect of each offender need to be seen.

5. Anderson's total criminality arose out of offences committed over two relatively short periods, namely 1992-1993, and 1995-1996.  These consisted of an armed robbery in company and related offences in 1992, a breach of the Bail Act 1980 (Qld) (three months cumulative), his commission of the present offences on 4 March 1996, a variety of minor offences in 1996 (concurrent short term sentences) and his escape from legal custody in May 1997 (four months cumulative).  At the date of his sentence on the present matters (27 February 1998) he had already served three and a half years, and his new sentence of six years was ordered to commence on that date.  When the special direction concerning parole is taken into account, his overall sentence was nine and a half years, and the minimum period he would have to serve before becoming eligible to be considered for parole was six years and ten months.

6. In Munt's case, his total criminality involved the present offences plus some relatively minor offences which were dealt with in the Magistrates Court and some non-payments of fines which led to prison in default.  By the date of his sentence on the present matters (7 October 1998) he had served approximately seven months on these other matters (that is to say apart from a short period for which he was given credit in relation to the present matters) and only three months remained to be served.  His total effective sentence therefore comes to five years and the minimum period he would have to serve before becoming eligible to be considered for parole was three years and one month.

7. In these circumstances I do not see any disparity or cause for grievance on the part of the applicant concerning the manner in which he and Anderson have respectively been dealt with.

8. There is in my view no sufficient reason to think that any appeal on sentence would be successful.  I would refuse the application for leave to extend time.

REASONS FOR JUDGMENT - SHEPHERDSON J

Judgment delivered 23 April 1999

1. I have read the separate reasons for judgment prepared by Pincus JA and Thomas JA.  I agree with Pincus JA that the application to extend time to appeal against conviction should be dismissed and for the reasons he has given.  I agree with Thomas JA that the application for leave to extend time to appeal against sentence should be refused and for the reasons which he gives.