R v Bailey[1999] QCA 40

COURT OF APPEAL

PINCUS JA

THOMAS JA

SHEPHERDSON J

CA No 15 OF 1999

THE QUEEN

v.

RIALL SHANE BAILEY Applicant

BRISBANE

DATE 24/02/99

JUDGMENT

PINCUS JA:  The applicant Mr Bailey, who appeared for himself today and made some submissions, which were of assistance, was convicted of numerous offences of dishonesty and sentenced to various terms of imprisonment in the District Court on 22 September 1998.  The longest term was eight years and various terms were made concurrent.

According to the applicant he lodged the relevant notice at the prison on 22 October 1998 and since he was sentenced on 22 September 1998 the notice, it appears to me, was in time.  The question whether it was in time or otherwise does not loom large, however, because Mr Moynihan was content to argue the matter substantively for the Crown.  The question therefore simply becomes whether or not the applicant has demonstrated that the sentence was manifestly excessive.

There were ninety-four offences considered by His Honour Judge McGuire, thirty-three of them charged on indictment and sixty-one are included in a schedule and are the subject of a request by the applicant to have them taken into account.  The indictment offences consisted of fourteen counts of fraud, two of receiving, one of unlawful use of a motor vehicle, eight of forgery and eight of uttering.  And the sixty-one offences were to put it simply, of a similar character.  The amount of property obtained was in excess of $300,000.

The applicant was born in October 1955 and so is forty-three years of age.  He submits that he has had a serious addiction to gambling and his criminal record, which is a bad one, is attributed to this addiction.  His criminal career started when he was a teenager, as Mr Bailey himself has pointed out. But his first prison sentence was for assault occasioning bodily harm, in 1974.  He has been sentenced to other terms of imprisonment on quite a number of occasions.  The longest period of imprisonment was one imposed in 1992 in respect of numerous offences of a character similar to the present and that produced a term of imprisonment of five years.  To be slightly more accurate, he was sentenced to two five year terms on different occasions in 1992, one in August 1992 and another in September 1992 in respect of another batch of dishonesty offences.

He was, it appears, released on parole on 7 May 1995 but he was arrested in September 1997 on the charges with which we are concerned, all of them committed while on parole.  By the time the applicant came to be sentenced by Judge McGuire on 22 September 1998 for the current charges, he had served about an additional year of his five year sentence, imposed in 1992.  He therefore had about a year and four months to go. 

The eight year term imposed by the District Court was made concurrent, so in effect there was an additional period of about six years and eight months.  The Judge made the applicant eligible for parole after having served three and a half years of "that sentence" which plainly  means the eight year sentence.  So he was eligible for parole a little more than half way through the additional term of six years and eight months.

The primary Judge remarked that when the applicant was spoken to by the police about some of his offending he was reasonably co-operative, and he admitted his involvement in many other offences.  Mr Bailey, in his submissions to us today, has stressed that factor.  His Honour said that by re-offending on parole the applicant had to pay the penalty of serving the rest of his five year sentence but that he had brought that about by his conduct.  But His Honour thought that was a factor which should be taken into account, possibly, in determining the overall sentence.

There has been some discussion today about the fact that the Judge seems to have made a wrong estimate of the time which the applicant still had to serve in respect of his existing sentences, those imposed in 1992.  It does not appear to me, however, that that calculation played any significant role.  What his Honour was principally concerned to do was to determine what was a proper sentence to be imposed.  He always intended to make it concurrent in respect of the new batch of offences.   The judge at one stage considered nine years and decided to make it eight years with a recommendation for parole as I have mentioned.

Mr Bailey, who has addressed us today, was particularly concerned about the recommendation for parole and he said that his co-operation should have induced the Judge to make a more generous recommendation.  While I think that some Judges might have been prepared to do so the fact remains, regrettably, that this is a very bad batch of numerous offences involving a great deal of money by a man, Mr Bailey, who is unable to control his tendency to repeatedly do dishonest things.

It is therefore very difficult, and I would think impossible, seriously to say that the sentences imposed by Judge McGuire were manifestly excessive; indeed they appear to me to be sentences which were clearly within the appropriate range.  It is unfortunate for Mr Bailey but the sentences imposed were of an orthodox character; they were not, although Mr Bailey suggested otherwise, excessive having regard to the ordinary run of sentences imposed for serious offences of dishonesty.  Having regard to the applicant's very persistent previous offending, the Judge was entitled to and did take a serious view.  I would refuse the application for leave to appeal against sentence.   And in so far as that is relevant, I would refuse the application for an extension of time.

THOMAS JA:  I agree. 

SHEPHERDSON J:  I agree, and would add only for the record that the value to the traders from whom property was obtained by the applicant's systematic fraud was $313,559.30. 

PINCUS JA:  The order will be:  (1) application for leave to appeal against sentence refused; (2) application for an extension of time refused in so far as that is necessary.