R v Weston[2005] QCA 176

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  I will ask Justice Keane to deliver the first judgment in this matter.

KEANE JA:  On 8 March 2005, the applicant pleaded guilty to four counts of entering a dwelling and stealing between 28 May 2003 and 5 February 2004, one count of entering premises with intent to commit an indictable offence and two counts of receiving.  The learned sentencing judge imposed a sentence of four years imprisonment on each count.

The applicant was born on 5 April 1977.  He was therefore 25 years of age when the offences were committed and 27 years of age at the day of sentence.  The applicant is a drug addict.

The offences for which he was sentenced involved breaking into four residential properties and stealing easily disposable property of a value in excess of $83,000.  He was apprehended as he broke into the Bowen District Hospital in an effort to steal morphine or methadone.  He was found in possession of stolen property on two other occasions.

The applicant cooperated with the police, in that he admitted his involvement in each of the offences to which he pleaded guilty, including offences for which the police had no other evidence against him.

The offending conduct, the subject of the count of entering premises with intent to commit an indictable offence and one count of receiving stolen property occurred after he had been released on bail in respect of the other charges and after his admissions to the police.

The applicant had a criminal history which, so far as the more serious offences are concerned, reflects his addiction to drugs.  In particular, on 19 October 2001, he was dealt with summarily in the Bowen Magistrates Court on eight counts of fraud, one count of receiving and possessing a dangerous drug and a pipe.  He was sentenced to 12 months probation and 150 hours of community service.

It is common ground between counsel for the applicant and for the Crown that the trend of decisions of this Court for offences of this nature suggests that the applicable range of sentence is three to five years imprisonment.

On behalf of the applicant it is submitted that in this case, involving as it does a relatively young man who had not previously been incarcerated and who had committed only seven offences, a notional head sentence should not have exceeded four years imprisonment. It was further submitted that this notional head sentence should have been moderated to no more than three years imprisonment, having regard to the level of cooperation with the authorities exhibited by the applicant and his willingness voluntarily to seek treatment for his drug addiction.

The applicant contends that the sentence which should have been imposed for these offences was three years imprisonment or four years imprisonment with a recommendation for early release or partial suspension after serving 18 months.

The Crown contends that the notional head sentence of four and a half to five years is a recognition of the seriousness of the offending and that it might be moderated appropriately by a reduction of between six to 12 months.

The Crown contends that the special leniency which the applicant may otherwise have merited, by reason of his admission of offences for which he might not otherwise have been convicted, is diminished in this case by reason of the circumstance that two of the offences were committed after he had been released on bail.

Even if this last point is accepted, it would seem that the learned sentencing judge must be taken to have approached the task of sentencing the applicant with a notional head sentence of the order of five years, that is to say, at the very top of the range for multiple offences of this kind. That is apparently the case, even if it be correct to say that the learned sentencing judge moderated the sentence by between six to 12 months in recognition of the mitigating factors.

In my view, the overall criminality of the course of offending in question here was significantly less serious than that which this Court has regarded as attracting a sentence of five years imprisonment, see R v Easton [2002] QCA 110; CA No 12 of 2002, 21 March 2002.  At least that is so where there is no recommendation for parole, see R v Davidson [1997] QCA 279; CA 210 of 1997, 7 August 1997.

In my opinion, a sentence of four years imprisonment, without a recommendation for parole, is too high.  With an appropriate recommendation, it might be said to be within, though still at the high end of, the appropriate range.

In the R v Smerdon [1996] QCA 444; CA No 258 of 1996, 12 November 1996, the accused was convicted after a trial of 24 counts involving over $60,000.  He was nearly 30 years of age with a minor criminal history.  He was sentenced to four and a half years imprisonment without any recommendation for parole.  In that case there was no occasion for the application of any discount for a plea of guilty.

The moderating factors which must operate in this case, by reason of the applicant's cooperation with the police and his early plea of guilty, provides strong support for the conclusion that a sentence of four years imprisonment without a recommendation for parole is too high.

It is also clear, in my respectful opinion, that the learned sentencing judge erred in imposing a four year term of imprisonment for each of the counts of receiving.  If those offences are considered alone, a sentence of four years is plainly excessive.  The Crown do not contend otherwise.

In these circumstances, the Court must exercise a sentencing discretion afresh.

The applicant has demonstrated the insight voluntarily to seek treatment for his drug addiction.  The applicant's cooperation with the authorities, including his admission of offences which might not otherwise have come to light, suggest that there is some prospect that the resolution of his addiction may lead to rehabilitation, see R v Hammond [1996] QCA 508; [1997] 2 Qd R 195 at 199 - 200.

That is so, in my opinion, notwithstanding the applicant's reoffending after his co-operation with the police.  In attempting to balance the claims of deterrence and leniency in the interests of encouraging the prospects of rehabilitation, I consider that the sentence which should have been imposed was a sentence of four years imprisonment with a recommendation for early release after serving 18 months.

In my opinion, the application for leave to appeal should be granted, the appeal should be allowed and there should be substituted for the sentence of four years imprisonment, a sentence of four years imprisonment with a recommendation that the applicant be eligible for parole after 18 months.

McPHERSON JA:  I agree with what Justice Keane has said and with the sentence which he proposes.

MULLINS J:  I also agree.

McPHERSON JA:  The order is that the application and appeal be allowed and that the sentence be varied by substituting the sentence proposed by Justice Keane.