R v Coster[2000] QCA 128

COURT OF APPEAL

McMURDO P

DAVIES JA

HELMAN J

[R v Coster]

CA No 432 of 1999

THE QUEEN

v.

BRYCE STEPHEN COSTERApplicant

BRISBANE

DATE 11/04/2000

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty on 3 December 1999 in the District Court at Southport to two counts of break, enter and steal, one count of housebreaking and one count of stealing.  The offences occurred between 17 June 1998 and 8 February 1999. 

He was sentenced to four years imprisonment in respect of the offence of housebreaking and to three years imprisonment in respect of the remaining offences.  The applicant had a limited but significant prior criminal history.  He had a minor street offence in 1997.  In 1998, he was dealt with for offences of assault occasioning bodily harm.  More significantly, on 6 January 1999, he was sentenced on 38 fraud offences, committed between 17 July 1997 and 14 October 1997, to two years' imprisonment, wholly suspended for an operational period of three years.

The last two offences occurred just one month after the imposition of that suspended sentence and constituted a breach of it.  The terms of imprisonment to which the applicant was sentenced were to be served concurrently with the two years suspended sentence, which was activated.

The facts of the offences are as follows.  On 17 June 1998, the applicant forced open a sliding glass door of an unoccupied display home owned by a charity and removed a washing machine which he planned to collect later.  He was identified by neighbours, the washing machine was not removed from outside the premises and was recovered (Count 1).

On 31 December 1998, he disconnected the power and forced the front glass door of a business at Labrador, stealing a jet ski and trailer, cash register and $1,000 cash and irrigation equipment.  The total value of the property stolen in respect of this offence was $9,100 and the value of the unrecovered property was $4,000.  This offence was committed whilst the applicant was on bail for the previous offence (Count 2).

Finally, on 8 February 1999, the applicant forced the laundry window of a Boystown prize home and again stole a washing machine and, on this occasion, additionally, a clothes drier, sewing machine, other items of laundry equipment and outdoor furniture.  The value of the unrecovered property was $3,942 (Counts 3 and 4).  These offences were committed whilst on bail for counts 1 and 2 and, as has been noted, breached the operational period of the suspended sentence. 

The offences the subject of the suspended sentence involved the writing of cheques in the course of the applicant's business.  The cheques were subsequently dishonoured and involved a total of $19,203.89, $12,000 of which remains outstanding.  These fraud offences were committed in an attempt to keep the applicant's business afloat. 

The applicant also claimed that Counts 3 and 4 were committed to obtain funds to make compensation in respect of the fraud charges and also to maintain a lifestyle which he could no longer afford because of his financial problems.

The applicant argues the sentence of four years, in the absence of any parole recommendation, was manifestly excessive in all the circumstances and does not sufficiently reflect the mitigating factors. 

The applicant was 29 years old.  He pleaded guilty and, as has been noted, had a limited criminal history.  The offences occurred when he was in desperate financial circumstances.  The first two counts could have been dealt with at the same time as the fraud charges and the last two counts were a single episode and occurred only one month after being dealt with on the fraud charges.  The applicant had not previously been sentenced to a term of actual imprisonment. 

He has a supportive partner and two young children, one of whom was born whilst he was in custody awaiting sentence.  He has the support of both his partner and his parents.  In a letter he handed up to the sentencing Judge, he claimed to have been Apprentice of the Year in the second year of his trade and was, until recently, an Australian Rules first-grade player from the age of 18. 

When an earlier relationship broke up in 1996, he commenced his own business and found himself in serious financial trouble which led to his involvement, firstly, in the fraud offences and, later, in these offences.  These claims seem consistent with his lack of criminal history until recent times. 

In my view, which, I must say, is not shared by other members of the Court, the learned sentencing Judge appears not to have given sufficient weight to the applicant's plea of guilty, remorse and the family circumstances which support the submission made that these offences and the offences, the subject of the suspended imprisonment, were out of character, occurring at a time when the applicant was in financial difficulties.

These factors should have been reflected in an early recommendation for parole.  I would have granted the application for leave to appeal against sentence, allowed the appeal by adding a recommendation for eligibility for release on parole after 15 months and otherwise confirmed the sentence imposed in the District Court at Southport on 3 December 1999.

DAVIES JA:  In my view, the sentence which was imposed was a high one.  However, a number of factors, two in particular which have, in substance been referred to by the President, persuaded me that, nevertheless, it was not manifestly excessive.

The first of those is the applicant's previous criminal history, especially the commission of the fraud offences, which were committed a little less than a year before the first of the offences, the subject of this application and which resulted in the imposition of a suspended term of imprisonment.

The second is the number and seriousness of the offences committed here at a time when, as it appears from the history which has already been related, he was being dealt with for the earlier offences.  Although it is true that the offences, the subject of this application, could have been dealt with theoretically at least, at the same time as he was dealt with for the earlier offences, it is important to note, in my view, that they were committed in a different time-frame entirely and are of a different kind and so that even if they had been dealt with at the same time, they could well have justified cumulative sentences being imposed.

In my view, the sentence was not manifestly excessive and I would refuse the application.

HELMAN J:  I agree with Mr Justice Davies.

THE PRESIDENT:  The order is the application for leave to appeal is refused.