The Queen v Byrnes[1999] QCA 234

COURT OF APPEAL

DAVIES JA

THOMAS JA

DEMACK J

CA No 126 of 1999

THE QUEEN

v.

MATTHEW JOHN PAUL BYRNES

(Applicant)Appellant

BRISBANE

DATE 18/06/99

JUDGMENT

DAVIES JA:  Mr Justice Thomas will deliver his reasons first.

THOMAS JA:  Shortly before Christmas last year this applicant was at a shopping centre car park and broke into a car using a screwdriver.  He was convicted of entering a motor vehicle with intent to steal and possession of things used in connection with unlawful entry.

Because he was then on parole pursuant to other offences, including unlawful use of a motor vehicle, he became liable to serve the balance of the unexpired term which was a little over one and a half years.

The applicant is 20 years of age.  He was sentenced to nine months imprisonment cumulative upon the unexpired portion of the previous sentence.  Further, a so-called global parole recommendation of 12 months was made after the date of the present sentence, which meant that a new parole consideration date was set at 24 March 2000.

The applicant's prior criminal history is not extensive.  But it includes previous convictions of breaking, entering and of unlawful use of a motor vehicle and of stealing and one of possession of dangerous drugs, all of these being committed when he was 17 or 18.

It seems that he had not seriously re-offended for the better part of two years preceding the present offence, although it is noted that he had been in custody for part of that period.

His major previous experience in the Courts was in 1997 when the sentence was imposed upon which he had been released on parole at the time of the present matter.  On that occasion, in 1997, he had been sentenced to two and a half years imprisonment with a recommendation for parole after serving 10 months.  Those sentences were a re-sentence for older offences of unlawful use of a motor vehicle, dangerous driving and stealing.  In addition he became liable to a further month (cumulative) because of breach of a bail condition.

The circumstances of the offence in question are that the applicant was seen breaking into a car at a shopping centre car park.  A witness called security.  The applicant had used an ordinary screwdriver and was also found in possession of a small file.  He had left the vehicle when apprehended and had not taken anything.  Damage to the car was $100.

He was detained by the security guard and police attended.  He initially denied that he had been the offender.  He declined to be interviewed by police.  However, he did plead guilty.

The Crown submitted that it was a late plea of guilty because he had not pleaded guilty on the first return of the indictment.  However, his plea of guilty occurred one week later and it seems to me that the criticism of his plea is highly technical.  In the absence of some clear indication as to what transpired between him and legal advisers, it would seem rather hard to withhold from him the benefit of a plea of guilty on this footing.  I say this because the learned sentencing Judge in the course of his remarks seemed to indicate some reserve about the plea, although he indicated that he would give "some" regard to it.

Not long before the incident in the car park the applicant had married.  His wife was employed and he was employed as a labourer for about 30 hours each week.  He had come from a good family and had a reasonably good work history.  He had been addicted to heroin at age 12 but had stopped using it by age 14 when he went to Quilpie and worked on a cattle station owned by his uncle.  He however commenced using amphetamines when he came back to Toowoomba. 

He offered compensation of $100.  His counsel informed the learned sentencing Judge that the offence was committed or motivated by lack of money.  He and his wife at the time of sentence had intended to go to Garah, which is a town in New South Wales, where her family lives. 

The learned sentencing Judge recognised the fact that having been released on 21 April 1998 the applicant had served a little over 12 months of the combined sentences of two years and seven months.  This left unserved balance of sentence of about 18 months and three weeks.

His Honour considered that the sentence to be imposed would have the effect of cancelling the parole and indeed that is correct.  His Honour however further commented that this "required the applicant to serve the balance of parole".  It seems that this consideration featured in the overall compilation of the sentence which consisted of a cumulative sentence of nine months, which would start at the end of the unexpired portion of the previous sentence. 

It was conceded by counsel for the Crown in this appeal, and rightly so in my view, that His Honour erred in concluding that there was no entitlement to parole or to consideration of parole on the applicant's part until completion of the former term.  Consistently with that view, his Honour calculated a parole date by reference to one half of the total unexpired term plus three months of the cumulative sentence, using the date of sentence as the starting point of the calculation.  That was not, in my view, a correct application of R v. Pepper and Cornwall (CA 366 and 367 of 1998, 2 March 1999).  It notionally deprived the applicant of the possibility of any favourable consideration of parole in relation to the period covered by the previous sentence.

Without the fixation of a new parole date the imposition of a simple nine month cumulative sentence would have given the applicant a statutory expectation of consideration of parole on 7 October 1999.  However, as indicated earlier, His Honour set a date at 24 March 2000.  In proceeding in this way, it seems to me,  a manifestly excessive sentence resulted and it falls to this Court to reconsider what sentence should have been imposed.

Mr Devereaux on behalf of the applicant conceded that a cumulative sentence was appropriate, and submitted that the quantum of such a cumulative sentence should be of the order of six months.  I accept both the concession and the submission.  In coming to the conclusion that six months is the appropriate sentence, I take into account that little damage was done and compensation was offered in respect of it, that the offence was of short duration and the youth of the offender.

In fixing a new parole date, which seems necessary, I see no reason to do other than to fix a date approximately halfway through the total of the old sentences and the new cumulative sentence, starting with a date a little more than twelve months before the date of the present sentence, which would be the notional commencement of a continuous prison term in respect of the old offences.  We are informed that this date would be 24 August 1999 on the footing that a cumulative sentence of six months is imposed.  I do not suggest that such an approach is always appropriate, but it produces a reasonable result in the present case.

Accordingly I would grant leave to appeal, set aside the sentence below and replace it with a cumulative sentence of six months and a recommendation for consideration of parole on 24 August 1999.

DAVIES JA:  I agree.

DEMACK J:  I agree.

DAVIES JA:  The orders are as indicated by Mr Justice Thomas.