R v Pearson-Harding[1999] QCA 92

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 377 of 1998

Brisbane

[R v. Pearson-Harding]

THE QUEEN

v.

JODY PEARSON-HARDING

(Applicant) Appellant

McMurdo P.

McPherson J.A.

Pincus J.A.

Judgment delivered 26 March 1999

Joint reasons for judgment of McMurdo P. and Pincus J.A., separate reasons of McPherson J.A. concurring as to the orders made

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.

APPEAL ALLOWED TO THE EXTENT OF SUBSTITUTING FOR EACH OF THE 6 YEAR SENTENCES IMPOSED BELOW A SENTENCE OF 5 YEARS IMPRISONMENT, CUMULATIVE UPON THE SENTENCES IMPOSED ON 21 JUNE 1996. 

DECLARE THAT THE PERIOD OF IMPRISONMENT SERVED BY APPLICANT FROM 16 MARCH 1998 TO 9 OCTOBER 1998 BE TREATED, IN WHOLE, AS IMPRISONMENT SERVED UNDER SENTENCES IMPOSED ON 21 JUNE 1996.  IN LIEU OF THE ORDER WITH RESPECT TO PAROLE MADE BELOW, IT IS RECOMMENDED THAT THE APPLICANT BE ELIGIBLE FOR RELEASE ON PAROLE ON 9 APRIL 2001.  THE 3-YEAR SENTENCES IMPOSED BELOW ARE CONFIRMED.

CATCHWORDS: CRIMINAL LAW - sentence - s. 156A Penalties and Sentences Act 1992 misapplied - Court of Appeal to exercise its own discretion - totality principle - sentences imposed by judge excessive.

Counsel: Ms B Callaghan for the applicant/appellant.

Mrs L J Clare for the respondent.

Solicitors: Boe and Callaghan for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 5 March 1999.

JOINT REASONS FOR JUDGMENT - McMURDO P. AND PINCUS J.A.

Judgment delivered 26/03/1999

1. This is an application for leave to appeal against sentence.  The applicant, a woman born on 1 February 1978 who was when sentenced on 9 October 1998 liable to serve the balance of existing sentences, complains of 6 year sentences imposed on her then.  The essence of the applicant's argument is that if one adds to the 6 year sentences a period of nearly 2 years which the applicant still had to serve under existing sentences, the total of nearly 8 years is too great having regard to the applicant's youth, pleas of guilty and the extent of her co-operation with the police.  The applicant's offences were of dishonesty of various kinds, but principally theft and misuse of credit cards.  The judge ordered that the applicant be considered for release on parole on 9 April 2002.

2. The applicant is a young woman who has to an unusual extent been persistently dishonest, apparently uninfluenced by being, when committing offences, on probation, on parole or on bail - or, as she was at times when committing the offences in question, in all three conditions at once.  The batch of offences with which we are concerned in this application was dealt with in the District Court on 9 October 1998 when the applicant pleaded guilty to 22 offences and asked that 141 further offences be taken into account, under s. 189(2)(c) of the Penalties and Sentences Act 1992.  As was pointed out by the prosecutor below, it would have been possible for a considerably larger number of charges to be based on the same facts;  use of s. 568 of the Criminal Code, which allows what would otherwise have been a number of offences of dishonesty to be grouped together in one charge, brought the number of separate counts down.

3. The offences presently in question were committed during two periods, from towards the end of 1996 to early 1997 and from towards the end of 1997 to March 1998.  During the whole of these periods - i.e. when all the offences were committed - the applicant was both on probation and parole, pursuant to sentences imposed in the District Court on 21 June 1996.  The Court then dealt with similar offences committed in 1995;  if one adds in a further batch, also committed in 1995, for which the applicant was sentenced in August 1996, there was a total of 57 charges relating to 1995.  These produced a sentence of 6 months imprisonment with 3 years probation and a sentence of 3 years imprisonment with a recommendation for parole after having served 6 months.

4. Strangely, as it appears to us, the applicant was released after having spent only two days in prison, consequent upon the sentencing on 21 June 1996;  she was then released to work and to home detention.  Subsequently the applicant seemed to obtain generous treatment as regards release on bail after arrest and as we have explained, then attained the status of one who was offending while on probation, parole and bail.  The applicant's credit card offence consisted in the theft of cards and subsequent fraudulent use of them so as to obtain money or goods.  Deceptions were used such as impersonating a police officer to obtain access to places in business premises at which handbags or purses of staff might be located;  other deceptions were used to facilitate taking fraudulent advantage of possession of the cards, such as phoning the victim of theft of a card, pretending to have found it and undertaking to return it at some future time.  The total amount of unrecovered loss exceeds $80,000.

5. We have mentioned that the applicant was convicted and sentenced for similar offences in 1996.  She had also been convicted of seven similar offences in respect of which probation was ordered, in April 1995. 

6. We are invited by both counsel to reconsider the sentences, as the Crown concedes that the judge made a legal error which could have affected the outcome.  His Honour mistakenly took the view that s. 156A of the Penalties and Sentences Act 1992 applied so as to make a cumulative sentence mandatory;  in fact that provision did not apply, because the applicant's offences did not include any of the type listed in the relevant schedule.  This Court therefore has to exercise its own discretion.  The applicant was in custody from 16 March 1998 before being sentenced, for the offences now in question, on 9 October 1998.  There is some difficulty in characterising the imprisonment from 16 March 1998 to 9 October 1998 and that must be dealt with by making an appropriate declaration. 

7. The applicant shows some signs of being an incorrigible thief.  After probation was ordered in April 1995, it took her only about two months to recommence the same dishonest course of conduct.  The applicant's youth was taken into account in her favour, when she was sentenced on 21 June 1996.  The applicant was then told at sentence that her young age and co‑operation with the authorities had saved her from a lengthy period of imprisonment;  there was also taken into account in her favour a "very disruptive life".  The sentencing judge expressed the view on 21 June 1996 that it was "clearly desirable for your rehabilitation that your prison stay is not too long".  The expectation or hope that leniency would encourage the applicant to behave better was disappointed. 

8. The primary judge was right to take the view that a substantial prison sentence should be imposed at the present juncture.  This is so despite the fact that, as was emphasised by counsel for the applicant before us, many of the offences for which she was sentenced were brought to police attention by the applicant herself and would or might not otherwise have been able to be proved.

9. The applicant's position when sentenced for the offences presently relevant was that she had nearly 2 years still to serve of the 3 year term she was given in 1996.  It was pointed out at the hearing before us that there is no means of knowing whether, her parole granted in 1996 having been cancelled by her conviction (s. 187 of the Corrective Services Act 1988), she might be granted some relief by the Queensland Community Corrections Board, under s. 190(2) of the same Act, from her obligation to serve that whole term.  There is no means of resolving that uncertainty, which can substantially affect the time to be served.  In my view, the better course is to sentence on the assumption that no such relief will be granted, which means that the sentence imposed below produced a total liability of nearly 8 years imprisonment - a heavy term to be imposed on one so young, in relation to offences involving no violence or threat of violence.  In making this observation, we have not overlooked that the applicant has not previously shown any inclination to respond to generous treatment. 

10. In our opinion, having regard to the totality principle, the sentences imposed by the judge should be regarded as excessive, although not very greatly so;  as we are, in view of the error identified above, obliged to sentence the applicant afresh, it does not appear to us necessary to conclude that there was manifest excessiveness, in order to impose lower sentences.

11. We grant the application and allow the appeal to the extent of substituting for each of the 6 year sentences imposed below a sentence of 5 years imprisonment, cumulative upon the sentences imposed on 21 June 1996.  It should be declared that the period of imprisonment served by the applicant from 16 March 1998 to 9 October 1998 is to be treated, in whole, as imprisonment served under the sentences imposed on 21 June 1996.  Further, in lieu of the order with respect to parole made below, it should be recommended that the applicant be eligible for release on parole on 9 April 2001.  The 3-year sentences imposed below are confirmed.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 26 March 1999

1 I agree with the joint reasons of McMurdo P and Pincus JA and with the orders they propose.