R v Weatherall[2001] QCA 129

COURT OF APPEAL

McPHERSON JA

CHESTERMAN J

HOLMES J

CA No 18 of 2001

THE QUEEN

v.

DAVID ANDREW WEATHERALL

BRISBANE

DATE 05/04/2001

JUDGMENT

McPHERSON JA:  The applicant was convicted on his own pleas of guilty in the District Court to two offences, namely, burglary and stealing and burglary by breaking in the night while in company.  In respect of the first of these two sentences, the penalty imposed was six months imprisonment and in respect of the second, nine months imprisonment.  The sentence in respect of count 2 was made cumulative on count 1, which resulted in an overall sentence of 15 months imprisonment with a recommendation for parole after six months.

The applicant now applies for leave to appeal against the sentence essentially on the ground that it is manifestly excessive and that the Judge fell into error in deciding to make the two sentences cumulative.

The circumstances of the offences can be summarised as follows.  The first offence occurred on 11 October 1999 and the second on 22 February 2000.  As to the first, at approximately 9.30 in the morning of 11 October 1999, the applicant entered the dwelling house of the complainant and stole her handbag, which was hanging from the door of her bedroom.   The complainant was resting in her room at the time.  The handbag contained a few small coins and a phone card.

Count 2 was more serious.  At approximately 4 o'clock in the morning on 22 February 2000, one of the complainants, who were a couple sleeping in their own house, woke to find an unknown male, who was the applicant's co-offender, asleep in the bed next to her.  She woke her husband, who was sleeping in a separate room, and the police were called.  Before they arrived, the complainants discovered the applicant asleep on a bed in the sunroom of the house. 

The complainants were an elderly couple of 79 years of age who had lived in that house all their lives and had taken steps to secure it by putting bars on the windows.  Entry had been gained by the applicant and his co-accused by cutting a flyscreen to a window and then bending the security bars.  A Stanley knife, together with gloves and a small torch, were found on the person of the applicant when he was arrested.

It is right to say that, although the conduct in question was certainly frightening to the victims, it did not involve or give rise to any aggressive behaviour on the part of the applicant against the victims themselves.  His behaviour, so far as one can make out, seems to have been a product of intoxication.  It certainly seems to me to be a strange thing to do, to break into a house and then go to sleep in it, because the almost inevitable consequence of doing so is that one is caught.

At the time of the offence the applicant was 19 years old.  He was 20 at the time of sentencing.  He has a prior criminal record, which is by no means negligible.  It refers to convictions in the past for three offences of burglary, one of attempted burglary, wilful damage, possession of a dangerous drug, two occasions on which he breached bail, two of possessing tainted property, one of receiving, two of obstructing the police.  He had completed a probation order before he committed the present offences.

One of the factors that go against the applicant is, I think, his criminal history.  The offences are similar in nature to those for which he was placed on probation in 1998, and he breached the probation order imposed on that occasion by committing a related property offence on 10 October 1998, although the order was allowed to continue in that instance.  He also committed an offence of receiving while he was on bail for count 1 on 26 December 1999, and he committed count 2 while he was on bail for count 1 and within a month of his conviction for the receiving offence.

There is, however, no obvious reason why the learned sentencing Judge should in this case have made the sentences cumulative.  It was within her discretion to have imposed a substantial penalty on, say, count 2 and a nominal penalty on count 1, but for some reason which is not entirely clear to me she chose to make the penalties cumulative.  Viewed as a sentence of 15 months, as I think it should be for present purposes, for the two offences, one serious and the other much less serious, it seems to me that there is an element of undue severity or excess in the sentences imposed.

Notwithstanding that the element of break and entry appears in a rather serious light in the case of the second offence, I think that this was not a case in which it was proper to accumulate the penalties in such a manner as to produce a sentence of the order of 15 months for the two offences.  I would therefore allow the appeal by varying the sentence to omit the order that the sentences be served cumulatively and also to omit the recommendation for parole.  That is the order that I would make in this case.

CHESTERMAN J:  I agree.

HOLMES J:  I agree.

McPHERSON JA:  The order will be as I have stated it.

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