R v Bonner[2000] QCA 37

THE PRESIDENT:  Mr Justice Pincus will deliver his reasons first.

PINCUS JA:  This is an application for leave to appeal against sentence. The applicant, who is 24 years of age, was convicted in the District Court of a number of summary offences as well as three offences under section 419(4) of the Criminal Code of entering a dwelling house and stealing property therein and three offences of unlawful use of a motor vehicle.

Two of the burglaries attracted a sentence of four years imprisonment; an older offence under section 419(4) was not the subject of a sentence. All the offences except that one were recent.

Before coming to the circumstances of the offences now in question it is desirable to say something of the criminal history. In 1991, 1992, 1993, '94, '95, '96, '97 and '99 the applicant has been convicted of offences of various kinds. Until 1995 he received non-custodial sentences, but in that year he was sentenced to six months imprisonment and later in the same year to two and a half years and then four years imprisonment. Then in 1996 he was ordered to serve six months and another six months cumulative and again 18 months concurrent. In 1997 he was ordered to serve three months concurrent and then two and a half years concurrent. In 1999 he was sentenced to further short terms of imprisonment.

There are in the record numerous offences like the present. There are on my count 53 offences of either breaking and entering or entering with intent. In addition, there are numerous charges of stealing, presumably associated with those just mentioned, and 10 offences of unlawful use of a motor vehicle.

It is desirable now to mention the circumstances of some of the present offences. In one the complainant, a single mother with two children, had her house burgled at night and her car taken from the garage. These offences occurred on 23 January '99. The applicant was arrested and charged on 18 February. Whilst on bail, less than three weeks later, he committed similar offences. On this occasion the complainant was again a woman, who found the applicant in her bedroom. He stole her car keys and using them took her car away. The next offence was committed while still on bail in the same month and again the complainant's car was taken away.

One of the difficulties the primary Judge had in dealing with the matter was that he had to balance the interests of potential victims of this persistent offender against the interests of the applicant in being rehabilitated. As to the former, his Honour must have been concerned that, on past performance, while not imprisoned the applicant was likely to commit further offences of the same kind as he had committed so often in the past.

The Judge mentioned as matters which had to be taken into account in favour of the applicant that there were no threats to the victims nor violence. Counsel below specifically asked for a recommendation for early parole, but that was denied, the Judge remarking that he had taken into account that "this was a plea of guilty", obviously meaning that he had taken it into account in fixing the head sentence. Counsel for the applicant today suggested the Judge's remark was an afterthought.

I have mentioned that there were a number of summary offences charged, including unlicensed driving, driving under the influence of a drug, possession of suspected stolen property, possession of cannabis, possession of a needle and syringe in an improper manner and possession of a knife. But the Judge rightly did not regard these matters as significantly adding to the overall criminality.

The strongest argument against the sentences imposed is, in my view, that the principal offences in question are not particularly bad examples. The property actually stolen was of small value and as Mr Moynihan points out and as I have mentioned, there was no violence nor threat of violence. It also goes in the applicant's favour, to some extent, that although there are some assaults in his record he has no very substantial history of having committed violent offences.

As an example of a rather similar sentence being upheld we were referred to Spicer, CA No 348 of 1993, 1 November 1993. That appears to me to have been rather a worse case than the present; there a sentence of four and a half years was upheld.

On the applicant's side we refer to Harrison, CA No 241 of 1994, 2 August 1994. That has the advantage of having the facts set out in considerable detail in the reasons. There was a sentence of four years in circumstances said to be somewhat similar and it was mitigated by this Court, as Mr Moynihan emphasised, ordering eligibility for parole after 12 months. Superficially, that case supports the applicant because there was, as here, a record of previous similar offences. The value of the property stolen and damaged exceeded $20,000, much greater than in the present case. On the other hand, it should be noted that the criminal record of Harrison was not as bad as that of the present applicant and, importantly, he had never previously been to prison. Also here, as I have mentioned, there were offences committed while on bail, whereas in Harrison it was unclear whether that was so or not. The Court also took into account in favour of Harrison there was some indication during his pre-sentence custody that his imprisonment had a sobering effect on him.

One returns to the central point which is, in my view, whether the Judge's desire to protect the community from the applicant's criminal tendencies, amply demonstrated over some years and undeterred by previous prison sentences, has led his Honour into error and brought about the imposition of a sentence which is unjust.

Although the amount of property taken away - if one leaves out of account the motor vehicles which were driven off - was quite small, one does not know whether that was because the houses broken into offered little by way of easy pickings, rather than because of any inclination on behalf of the applicant not to steal too much.

The applicant will be eligible for parole in July next year, although he would have to show some clear indication of mending his ways, perhaps, to be released then.

In my opinion the four year sentence for the principal offences - the level of which took into account all the other offences - was, although a substantial one, nevertheless justifiable. The case is perhaps marginal, but when one considers the extent to which the applicant has demonstrated a persistence in the same sort of criminal activity as that which has brought him before the Courts on previous occasions, in my opinion the proper order is to refuse the application.

THE PRESIDENT:  I agree with Mr Justice Pincus that the application should be refused. I was initially concerned whether sufficient regard had been given by the learned sentencing Judge to the mitigating factors, namely that the applicant pleaded guilty. He was comparatively young - 24 years of age - and these offences were not the most serious examples of this type.

These mitigating factors, however, must be countered by the many serious aspects of this case mentioned by Mr Justice Pincus and by the learned sentencing Judge. I note the applicant was only released from prison three months before committing these offences, some of which were committed on bail.

In the end, I am unpersuaded that the sentence imposed was manifestly excessive and I agree with the order proposed by Mr Justice Pincus.

WILLIAMS J:  It is the applicant's previous criminal history which influences my thinking on this matter. In all the circumstances I agree with all that has been said by the other members of the Court and with the order proposed.

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