R v Morrison[2004] QCA 322

SUPREME COURT OF QUEENSLAND

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

McPHERSON JA:  The applicant pleaded guilty in the District Court at Brisbane on 8th June 2004 to 21 counts of burglary and stealing, two counts of breaking and entering premises and stealing, one count of receiving and one count of fraud.  He was sentenced to serve a term of seven years' imprisonment with a recommendation for parole after three years. 

The applicant now seeks leave to appeal against the sentence on the ground that it is manifestly excessive.  The applicant pleaded guilty ex officio to 25 offences on the indictment before the sentencing Judge.  These offences were committed between August 1997 and May 2003, although the majority of the offences occurred on a four year period between 1999 and 2003.

The applicant was sentenced to seven years' imprisonment for the 21 counts of burglary and stealing and given lesser concurrent terms for the two counts of breaking and entering premises and stealing, receiving and fraud.  In relation to the latter two matters there were 58 offences of receiving rolled into one count in accordance with section 568 of the Code, and 82 offences of fraud rolled into a single count under the same section.

The applicant, by committing these offences, had also breached a suspended sentence which had been imposed on him in the Magistrates Court in February 2001.  The sentencing Judge found a breach of that suspended sentence to have been proved and activated the remaining months of that sentence, but directed that they be served concurrently.

In addition, when imposing the foregoing sentences, the learned Judge took into account a further 38 offences which the applicant had not been convicted of but which he consented to the Judge taking into account under s 189 of the Penalties and Sentences Act.

The schedule of offences under s 189 comprised 34 counts of burglary and stealing, two counts of stealing and two counts of attempted burglary.  The applicant also pleaded guilty to summary offences for which no additional penalty was imposed consisting of the possession of tainted property, driving a vehicle in a pedestrian way, obstructing police and failing to appear.

The applicant committed most of the burglary offences by breaking into residential premises during the daytime on school days when no-one was at home.  He would first knock on the front door to see if anyone was there.  If there was no answer, he would then break into the house by smashing a window or slashing a fly screen and take any property that he thought was valuable and that he could carry away.

He stole property such as cameras, electronic equipment, jewellery, money and other portable items which he would then sell to pawnbrokers, in order to support his addiction to drugs.  Some of the property he stole, such as jewellery, had significant sentimental value to the complainants, not to mention the emotional impact on them of having their houses broken into.

In all, he took a total of some $470,000 worth of property, although it is clear that at least in relation to some of the later offences, part of the property has been recovered as a result of the cooperation of the applicant.  None of the offences involved any aggravating circumstance of violence or the like.

The applicant was apprehended and taken into custody by police on 18th May 2003.  He agreed to be interviewed and made admissions concerning his involvement in the 25 offences on the indictment. 

He made a phone call to his father, who said that he only wanted to see the applicant again if the applicant got his life in order by not committing any more offences and by breaking his drug habit.  The applicant, apparently because of this phone call, decided to make a clean breast of things to the police by voluntarily admitting to offences for which there was otherwise no evidence against him, and of which he was not otherwise suspected.

He participated in a lengthy drive around with the police, in the course of which he pointed out houses he had burgled and listed the property he had stolen and the pawnbrokers to whom he had sold it, so that some of it could be and was recovered.

The applicant subsequently pleaded guilty to all of the offences on the indictment.

The applicant has a previous criminal history.  On 6 November 2000 he was convicted of breaking and entering a dwelling with intent to commit an indictable offence, stealing and two counts of fraud, in the Magistrates Court at Cleveland and given two years' probation.  He breached that probation order.

In February 2001 he was convicted in the Magistrates Court at Wynnum of 14 counts of entering a dwelling with intent, 22 counts of fraud and one count of breaking, entering and committing an indictable offence.  He was sentenced to 10 months' imprisonment, to be suspended after two months for an operational period of three years. 

The subject offences in this instance constituted a breach of both the probation order and the suspended sentence.  A total of 5 out of 25 offences in the indictment and 15 out of 38 in the s 189 schedule were committed in breach of the probation order, and 15 in the indictment and 25 in the schedule were committed in breach of the suspended sentence.

The learned Judge here activated the remaining eight months of the suspended sentence, but, as I think I have already said, he ordered that it be served concurrently.

The personal circumstances of the applicant are of considerable influence here.  The applicant was born on 5th June 1980.  He was aged between 17 and 22 years during his period of offending and was 24 at the time of sentencing.  His mother died when he was four years of age and he was in fact the person who first found her dead.  He was raised after that by his father and step-mother, the latter of whom he did not get on well with. 

The father appears to have been a violent man. He broke the applicant's arm at the age of about 16.  At that age, he was expelled from the house by his father and it appears he spent some time living on the streets.  He became addicted to "Ice" a crystalline form of methylamphetamine, and has taken that and other drugs regularly.

In spite of all this, the applicant appears to have had a good employment record.  He worked as a concreter for four and a half years during the period of his offending. 

He apparently has a job waiting for him when he is released and it will be either as a concreter with his old employer or at a factory where his sister works.  His sister and father are now both supportive of him and the father has offered to allow the applicant to live with him when he is released.  The applicant has now made strong efforts to rid himself of his drug habit. His record during the period of some 380 days while he was in prison before sentencing shows that he maintained himself in a drug free condition throughout that period.

I have summarised his previous criminal history.  I will not repeat what I have said.  It goes back to a minor conviction for vagrancy in November 1997.  So far as comparable sentences are concerned, two cases principally were relied upon and discussed, both here and in the Court below.  They are R v. Josey [2003] QCA44 where the sentence imposed was one of five years suspended at two and a half years in respect of a 21 year old man, who was 17 going 18 when he committed offences involving almost $180,000 worth of property taken from houses and the like.

He too had a dysfunctional upbringing and had had no previous term of imprisonment as an adult.  Like so many offenders of his kind, including the applicant here, it was his drug addiction that motivated him to carry out the offences.  He had, by the time he came before the Court, the support of his parents.  An Attorney's appeal against the adequacy of that sentence was dismissed.

The other case which attracted attention in the course of the submissions in this matter was the decision in R v. Slade (CA 147 of 2002), which involved a sentence of seven and a half years imposed with a parole recommendation after three years.  In addition, there was a schedule similar to the one presented in this case involving 424 different offences, principally using stolen credit cards, as well as 62 break and enters and 48 receiving charges.

The applicant in that case was slightly older.  He was 27 years at sentencing and had served in the army for some period of time.  He started using drugs at the age of 24.  The offences there involved in value some $200,000 worth of property.  The application for leave to appeal in that case was dismissed. 

It is suggested that the appropriate head sentence here fell within those two limits of five years and seven and a half years.  Here, of course, it was seven years so that it was placed between those two outside limits.  Mr Devereaux, on behalf of the applicant, suggested that the appropriate sentence here was six years.  The amount of property involved is, of course, considerably larger than either of those cases at least so far as can be determined superficially on the figures given. The applicant here was older than the appellant Josey but younger than Slade. 

This is one of those unfortunate cases in which one would like to do something to assist the applicant in remedying the difficulties he has had in his life.  It is, however, in my view, not possible, with any degree of intellectual honesty, to say that the sentence of seven years was so high or inappropriate that we could reduce it to six.

On the other hand I consider that there is a good deal to be said in favour of the view that there are special circumstances here that call for some adjustment in the sentence.  By "special circumstances" I mean the childhood difficulties the applicant has experienced, his very extensive cooperation with the police, and the real efforts which he appears to have made towards his rehabilitation as demonstrated by his abstinence from drugs during the period of 380 days in prison.

Considering all those factors I have reached the conclusion that the Judge below was, with respect, in error in not reducing the period which the applicant will have to spend in prison before becoming available for consideration for parole.  In the result, what I would recommend or propose in this case is that, although the head sentence be left standing at its present level, the period before which he may apply for parole should be reduced from three years to two.  In other respects I consider that the sentence should not be interfered with. To the extent, therefore, that a recommendation for parole be altered to provide that the applicant be considered for that purpose after two years of serving his sentence, the sentence should be varied otherwise I would dismiss the application for leave to appeal.

THE PRESIDENT:  I agree.  The effective seven year sentence imposed by the learned primary Judge gave proper effect to the very great number of offences including burglaries involving almost $500,000 worth of property, most of which was unrecovered, and the fact that the applicant committed these offences over a four year period during which he had the benefit of a number of lenient community-based sentences and a suspended sentence.  It is an understatement to say that he did not take advantage of that leniency.

More optimistically it now seems that he has reached a turning point in his life and confessed to all these offences, most of which would never have been detected but for his confession.  He seems genuinely remorseful and determined to beat his drug addiction and turn around his, to date, unfortunate life.  He has encouraging support from family and employers. 

His cooperation with the administration of justice has been extraordinary and is deserving of recognition by an unusually early recommendation for parole after two years.  I agree with the orders proposed by Mr Justice McPherson.

JERRARD JA:  I agree with the reasons for judgment of Justice McPherson and the President and I add only that I also agree the head sentence imposed was not manifestly excessive.  This offender's offences were committed over a six year period and involved the theft of property totalling $471,000 and a number of those offences were committed whilst he was on probation and others when he was under a suspended sentence.

However, the recommendation for parole that was made fails to reflect sufficiently the unusual combination of the circumstances of the applicant's extreme cooperation with the investigating police and to the circumstance of the reason or motive for that assistance as declared by the applicant.  That was so that he could establish grounds for reuniting with his father and he subsequently appears to have adhered to that goal.  That clearly should be encouraged by an order which reflects what has occurred and I agree with the one proposed by Justice McPherson.

THE PRESIDENT:  The orders are as outlined.