R v Bell[2002] QCA 321

COURT OF APPEAL

DAVIES JA

MACKENZIE J

HOLMES J

CA No 83 of 2002

THE QUEEN

 v.

 BRADLEY JOHN BELL

BRISBANE

DATE 23/08/2002

 JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 21 March 2002 to 27 offences involving dishonesty committed between 18 March 2001 and 6 July 2001.  They were 12 offences of receiving, two of burglary and stealing, 10 of fraud, one of breaking and entering premises and stealing, one of possession of things used in connection with unlawful entry and one of attempted fraud.  On the same day he was sentenced to five years imprisonment with a recommendation for post-prison community based release after serving two years of that term.  He seeks leave to appeal against that sentence.

The applicant has a long history of offences involving dishonesty commencing from 1986 when he was a child.  He was first sentenced to imprisonment on 2 April 1987 for unlawful use of a motor vehicle, that being a sentence of six months imprisonment with probation for two years.  He was sentenced to imprisonment on no less than four occasions in that year, each for offences involving dishonesty mostly involving breaking and entering.  These sentences were, on two occasions six months imprisonment, on the third nine months imprisonment and on the fourth 10 months imprisonment.  He was again sentenced to imprisonment in 1988 and in 1989 he was sentenced to two years imprisonment.  In 1990 he was sentenced to terms of four months and six months, in each case cumulatively upon sentences he was then serving.  Then in 1992 he was sentenced for a large number of offences, over 70 in all, to a total period of eight years imprisonment.  In 1998 he was once again before a court and sentenced to 12 months imprisonment.  The first of the offences the subject of his present conviction occurred less than six months after his last release from imprisonment. 

These offences were, as I have already indicated, receiving, burglary and stealing offences but also fraud.  The most serious of them by far involving breaking into the Coorparoo Police Station with another and stealing 16 concealable firearms.  He was on bail or subject to notices to attend when some of these offences were committed.

After making allowance for some matters which it is unnecessary to mention here the learned sentencing judge imposed a sentence of five years imprisonment in respect of each of the offences.  In doing so, his Honour erred in two respects.  In respect of counts 16 and 27 the maximum penalties are three years and two and a half years respectively and in respect of counts 17, 18 and 20 to 26, a term of five years is the maximum term.  For these reasons the sentences which were notionally and actually imposed in respect of these offences were not ones which the learned sentencing judge either could in one case or should in the other have imposed.  It is therefore necessary to re-sentence in respect of those offences and Mr Heaton who appears for the respondent before us does not suggest otherwise and in re-sentencing in respect of those offences it is appropriate to have regard to the matters to which the learned sentencing judge had regard when imposing the sentence which he imposed of five years imprisonment.

Having regard to those matters, the applicant contends and Mr Heaton does not dispute that the appropriate sentence in respect of count 16 should be a sentence of two years imprisonment, that the appropriate sentence in respect of count 27 should be one of 18 months imprisonment and that the appropriate sentence in respect of counts, 17, 18 and 20 to 26 should be sentences of three years imprisonment in each case.

The applicant's complaint in respect of the sentences is with respect to changes of the Corrective Services Act.  That is not a satisfactory basis for changing those sentences.  However, Mr Heaton concedes, rightly, in my opinion, that they were wrongly imposed and that they should be imposed at the levels I have mentioned.

I would therefore grant the application and allow the appeal only to the extent of:

1.Setting aside the sentence imposed on count 16 and substituting a sentence of two years imprisonment;

2.Setting aside the sentence imposed on count 27 and imposing a sentence of 18 months imprisonment, and;

3. Setting aside the sentences imposed in respect of counts 17, 18 and 20 to 26 and imposing in lieu a sentence in each case of three years imprisonment.

Otherwise I would confirm the sentences imposed by the learned District Court judge. 

MACKENZIE J:  I agree.

HOLMES J:  I agree.

DAVIES JA:  The orders are as I have indicated.