R v Easton[2002] QCA 110

COURT OF APPEAL

WILLIAMS JA

WHITE J

PHILIPPIDES J

CA No 12 of 2002

THE QUEEN

v.

ANTHONY MICHAEL EASTONApplicant

BRISBANE

DATE 21/03/2002

JUDGMENT

WILLIAMS JA:  I will ask Justice White to deliver the first judgment in this matter.

WHITE J:  The applicant seeks leave to appeal against sentence.  In his application form he complains about the failure to obtain a recommendation for early release or an order for a partially suspended sentence from the sentencing Judge but he does not complain about the head sentence and that is the position which Mr Weston, who appears for the applicant, has taken on this application.

The applicant pleaded guilty on ex officio indictment on 30 November 2001 in the District Court to nine counts of breaking and entering premises and stealing, two counts of entering premises with intent to commit an indictable offence, two counts of attempted entry of premises with intent to commit an indictable offence, one count of entering premises and stealing, two counts of stealing and one count of unlawful use of a motor vehicle.

A schedule of summary offences was taken into account pursuant to section 189 of the Penalties and Sentences Act.  There were said by the learned sentencing Judge to be more than 50 such summary offences.  His Honour below imposed a head sentence of 35 months for all matters save the stealing and unlawful use for which he imposed terms of imprisonment of six and 12 months respectively.

The last five offences were committed while the applicant was on bail for the earlier offences.  His Honour imposed a cumulative sentence of one month for breach of bail making a total head sentence of three years.  His Honour took as his starting point a sentence of four years which was proposed by the prosecutor and not really disputed by defence counsel although he tended to drift towards three years as the appropriate head sentence in the course of his submissions.

His Honour then reduced that head sentence of four years by 12 months to reflect the plea of guilty and matters personal to the applicant and made no other recommendation.  A declaration of 206 days of presentence custody was made.  The first group of offences occurred between 1 January and 7 March 2001.  The applicant was taken into custody on 8 March until 13 June when he was released on Supreme Court bail.

The final group of offences occurred in early August 2001.  He was returned to custody on 15 August and remained in custody until his sentence on 30 November.  The bulk of the indictable offences consisted of the applicant breaking into various commercial premises and stealing whatever goods he no doubt thought he could sell or exchange.  The applicant was addicted to amphetamines and told the police that he had a gambling addiction.

The total loss, including damage to the various premises, was $42,435.  The schedule of facts which was tendered by the prosecution sets out the detail of the break and enters which caused, in some cases, considerable damage to the premises.  The majority of offences to which the applicant pleaded guilty came to the attention of the police as a consequence of the applicant's own admissions.

After his arrest he drove around with the police conducting an interview and identified locations of his offending.  The prosecution estimated before his Honour that there were only about a quarter of the offences for which the police had independent evidence, such as fingerprints, which linked the applicant to the offences.  Numbers of those related to summary offences or at least to some of the less serious offences.

The applicant began using amphetamines heavily in September 2000 and continued until he was arrested in March 2001.  It was accepted that the purpose of his offending behaviour was to obtain money for goods so that he could acquire further drugs.  The applicant was aged 34 at the time of the offences and apart from a summary drug offence in 1996 his criminal history related to minor dishonesty offences all of which, looking at his criminal history, post-dated what was said to be the precipitating event of his dissent into drug addiction.

He did have some minor history in Western Australia for stealing in 1987 and cannabis supply in 1986 in Victoria.  The precipitating event was said by his counsel to have been the separation of his parents and his ensuing depression, the loss of his taxi driving licence and the break-up of a relationship.  Hitherto, the applicant had had a good work history. 

It was urged upon his Honour that a short period of imprisonment, together with probation which would involve a residential placement at a drug rehabilitation institution would be an appropriate option.  The applicant had, it would seem, entered such an institution when released on bail but had been excluded from that institution for late return. 

Mr Weston submits for a head sentence of three years with a recommendation for early release after nine to 12 months or a partially suspended sentence in that amount together with the declaration.

Mr Weston's submission focuses on the failure, as he submits, of the learned sentencing Judge to take into account the extensive cooperation which the applicant gave to the police in identifying himself as the offender in respect of a great many of the offences to which he pleaded guilty.

A number of cases suggest that a four year head sentence was an appropriate starting point for his Honour in this matter.  In Smerdon, No 259 of 1996, a 27 year old man was convicted after trial in which limited admissions had been made on three indictments with respect to break and entering offences involving schools, homes, industrial sites and other installations. 

He was sentenced to four and a half years head sentence made up of three sets of cumulative sentences in respect of each of the indictments.  He had recruited another younger man to assist.  He had some previous criminal offences, not dissimilar to those of the applicant here.  The total amount lost to the victims of the crimes was $60,000.  His motivation was described by the Court as greed.  His sentence was not disturbed on appeal.  In that aspect of the case the Court referred to a number of comparable sentences of the Court of Appeal.

Mr Weston referred the Court to the case of Davidson, as did Mr Rutledge who appeared on behalf of the Crown.  It is CA No 210 of 1997.  The applicant there pleaded guilty to what was said to be some 22 counts of housebreaking, burglary and stealing.  That case is perhaps closer to the facts of this case than any others to which we have been referred.

He was a 30 year old male with a minor previous history.  The offences were described as random and largely purposeless and occurred over a period of about three months involving amounts of $30,000.  The plea was described as early and he assisted the police.  A sentence of four and a half years in the absence of a recommendation for early eligibility for parole was in the circumstance held to be too high and even with a recommendation was said to be at the high end of the appropriate range.  The Court made a recommendation that the applicant be eligible for parole after serving 18 months of the sentence which was imposed below.

Mr Weston attached the case of Witherington, CA No 76 of 2001 to his outline although did not take the Court to it in the course of his oral submissions.  That is a case which is quite distinguishable from the present and I will say no more about it.

Mr Rutledge also referred to Shearer in his written submissions, CA No 130 of 1996.  In that case the applicant pleaded guilty to 52 counts of dishonesty including housebreaking, stealing and receiving.  A sentence of four years imprisonment was imposed as the head sentence with a recommendation for parole after 18 months.  The value of the unrecovered property and damage to property was assessed at over $29,000.  That applicant had a minor criminal history and was aged 28.  The complaint in that case essentially was disparity with a co-accused, but the Court held that the sentence which was imposed, together with the recommendation was well within the range applicable to offences of this nature and extent.

No doubt his Honour could have fashioned a different kind of order in respect of the applicant, but his Honour specifically mentioned all the matters in mitigation including the considerable cooperation with the police which was an indicator of remorse, together with the many courses which the applicant had undertaken in prison, his good work history and the effect of drugs on his life.

Five of the indictable offences had occurred in breach of the applicant's bail and it may well have been, although it was not the subject of any submission by the prosecutor below, that it would not have been inappropriate to have made punishment for those offences cumulative on the other group of offences at the beginning of the year.

His Honour had been referred to the case of Hammond, 1997 2 Queensland Reports 195, in the course of argument, which deals with the approach that a Court might take to a person who engages in offending conduct as a consequence of drug addiction. 

The recognition of all these factors in the reduction in the head sentence by 12 months leaves the applicant with a sentence which, in my view, is not manifestly excessive bearing in mind the number and extent of the offences which the Court was considering.  Accordingly I would dismiss the application.

WILLIAMS JA:  I agree.

PHILIPPIDES J:  I agree.

WILLIAMS JA:  The order of the Court is application for leave to appeal against sentence dismissed.