R v Dunn[2005] QCA 164

COURT OF APPEAL

JERRARD JA

MUIR J

WILSON J

CA No 79 of 2005

THE QUEEN

v.

RICHARD JOHN DUNN

(Applicant)

BRISBANE

13/05/2005

MISS N MARTIN for the applicant

MR C HEATON (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

MUIR J:  The applicant applies for leave to appeal against sentences imposed by a Judge of the District Court on 18 March 2005 in respect of offences contained in three indictments to which the applicant pleaded guilty.

The applicant who was born on 23 September 1956 had a prior criminal history in New South Wales where he was sentenced in 1992 to terms of imprisonment of two years and three months and one year and nine months cumulative for offences of larceny, breaking and entering and stealing.

In June 1994, again in New South Wales, he was sentenced to a total of six and a half years imprisonment for offences of stealing and breaking and entering.  There were other minor offences.

As mentioned earlier, there were three indictments before the learned sentencing Judge and for convenience they will be referred to as indictments 1, 2 and 3.

Indictment 1 contained three counts of breaking, entering and stealing, three counts of bringing stolen goods into Queensland, two counts of stealing and one count of unlawful use of a motor vehicle.  One of the offences was committed in 1986, five in 1987 and three in 1988.  For these offences, the applicant was sentenced to two years imprisonment to be served concurrently with the other sentences imposed.

The value of the property taken was approximately $588,000 of which only $188,000 was still outstanding.  The applicant escaped apprehension in relation to these offences until October 2000 when the offences came to light in the course of the police investigations to which I shall later refer.

The Crown proceeded on two of the counts on Indictment 2, unlawful possession of a motor vehicle with a circumstance of aggravation and unlawful use of a motor vehicle. The first of the offences was committed between September 2001 and June 2002 and the second between September 2000 and June 2002.  The vehicle referred to in count one was a Ford Falcon utility which had previously been stolen and was on a semi-trailer being driven by either the applicant or another person assisting the applicant. The vehicle, the subject of count 2, was the trailer on which the utility was being transported.  The sentence imposed on these counts was a total of five years imprisonment, again to be served concurrently with the other terms.

The applicant pleaded guilty to 13 counts of unlawful possession of a motor vehicle on the third indictment.  The offences were committed between various dates but in all cases, the period concluded in February 2003.  The earliest commencing date was 7 June 2002 and the latest, except in three cases, was 25 January 2003.

These offences were detected when police investigations uncovered a business operated by the applicant and a co-accused, McLauchlan, in which they obtained and re-identified stolen semi-trailers, prime movers and other heavy items of plant.

Another co-accused, McGarry, had a peripheral role in the activities.  His offending conduct was limited to assisting in the disposal or movement of the stolen property only over a period of six weeks or so.

Sixteen stolen vehicles, mostly prime movers, were the subject of these counts.  Eight were found in possession of the applicant, and one or more of his co-accused, in a complete or substantially complete form.  Parts only of other vehicles were located.

During the period covered by the offences the applicant was involved in re-identification of ten vehicles.  The total value of the property concerned in the offences was slightly in excess of $1 million and of that amount $756,000 remains unrecovered.

The applicant was on bail in respect of offences on indictment 1 at the time of these offences.  In between the earlier series of offences and the offences on indictment 3, the applicant committed the two offences on indictment 2, as well as the offences in New South Wales for which he was sentenced as earlier described.  The sentence imposed for the offences on indictment 3 was also five years to be served concurrently.

The applicant does not contend that the five year terms were manifestly excessive.  It is conceded that a term of imprisonment of five to seven years, suspended after a period of 12 to 18 months, was open to the sentencing Judge.

The primary complaint stems from the fact that the applicant had spent 763 days in pre-sentence custody which was not able to be declared as time served under the sentences imposed.  As a result, the applicant will be required to serve at least four and a half years before he is eligible to apply for post-prison community based release.

It is submitted on his behalf that the learned sentencing Judge expressed regret that a declaration could not be made in favour of the applicant and by failing to make any recommendation in respect of eligibility, the benefit which the Judge would have otherwise extended to the applicant was lost.

Other sentencing errors alleged are that the sentencing Judge did not sufficiently take into account the applicant's early plea of guilty by suspending the five year terms at the expiration of 12 to 18 months and that he imposed sentences disproportionate to those imposed on his co-accused. 

Miss Martin who appeared for the applicant in oral argument also referred to the prospect of a sentence being imposed in New South Wales, upon the applicant's release, in respect of the breach of bail conditions in New South Wales. 

It was also submitted by her that having regard to possible problems with a recommendation for post-prison community based release and the fact that the co-offenders were given suspended terms of imprisonment, it would be more appropriate to impose a suspended sentence than to make a recommendation.

The submissions on behalf of the Crown by the learned Crown Prosecutor, Mr Heaton, are that the sentence of two years for indictment 1 is unchallengeable.  The making of all sentences concurrent provides sufficient allowance for the pre-sentence custody and a sentence of five rather than seven years makes sufficient allowance for the early pleas.  There is one exception to that submission and I will come to it a little later.

Many of the offences on the first indictment involve property of substantial value, and when considered in their entirety, reveal a pattern of large scale theft of rural plant and equipment and goods over a period of 18 months or so which was accompanied in some instances by the breaking into of secured property.

The fact that the applicant was successful in escaping detection for these offences until the year 2000 is hardly something which counts heavily or at all in his favour.  The sentence imposed, then, in respect of the offence on the first indictment must be regarded as lenient unless viewed as part of an overall sentencing plan.

The authorities of the R v Norton (Court of Appeal 62 of 1995) and R v Nomikos and Luff (Court of Appeal 98 and 102 of 1999) support the conclusion that a sentence of seven years for the offences on the third indictment would not have been excessive when regard is had to the applicant’s prior criminal history.

The sentence of five years, then, makes appropriate allowance for the applicants early plea of guilty.  Also when considering the sentences imposed and their structure, it is relevant to take into account that the offences on indictments 2 and 3 were committed whilst the applicant was on bail in respect of the offences on indictment 1.

The sentences imposed on the co-offenders do not assist the applicant.  McLauchlan was sentenced to four and a half years imprisonment suspended after 15 months for a period of five years.  His conduct was less culpable than that of the applicant, in that the offences for which he was sentenced involved property of a total value of $609,000 of which $146,000 was not recovered.  He had no previous convictions.  He suffered from prostate cancer which required treatment and the sentencing Judge remarked that his state of health was a significant matter.  McLauchlan, unlike the applicant, was not on bail for earlier offences. 

McGarry's involvement in the subject criminal enterprise was limited to the extent earlier identified, he also, in effect, pleaded at a relatively early date and was sentenced to three years imprisonment suspended after nine months.  When all of the above matters are taken into consideration the contention that the five year sentences without a recommendation were manifestly excessive, or were effected by error, cannot be sustained.

The matters raised by Miss Martin do not effect this conclusion.  It is possible only to speculate at this stage, what may or may not happen in New South Wales and the extent, if at all, to which the sentences imposed in Queensland may effect what happens in that jurisdiction.

I come now, however, to the matter to which I intimated I would return.  Mr Heaton accepts that the sentencing Judge approached the imposition of the sentences with an intention that full recognition be given to the time spent in pre-sentence custody and that the sentence imposed did not achieve the sentencing Judges objective.  He concedes that it would be appropriate to make a recommendation in favour of the applicant after 18 months.

Accordingly, I would allow the appeal but to the extent only of making a recommendation for eligibility for post prison community based release after the applicant has served 18 months of the sentences imposed.

JERRARD JA:  I agree with Muir J’s reasons for judgment and with the order that His Honour proposes.

WILSON J:  I agree also.

JERRARD JA:  That will be the order of the Court.