R v Sparks[2006] QCA 286

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with the orders proposed by Jerrard JA and with his reasons.

2. JERRARD JA:  On 6 March 2006 Mr Sparks pleaded guilty to an indictment charging him with two counts of breaking, entering and stealing, those offences being committed between 11 June 2004 and 15 June 2004 at Mackay; and to an ex-officio indictment charging him with a count of receiving stolen money on 16 November 2002 at Pialba.  He was sentenced to four years imprisonment, to be suspended after he had served 18 months of that term, with an operational period of five years, on each of the two counts of breaking and entering, and 299 days of pre-sentence custody between 17 June 2004 and 11 April 2005 was declared time already served under that sentence.  He was also sentenced to 12 months imprisonment regarding the receiving offence. 

3. Those sentences were concurrent, but – and this is the matter resulting in this application – the judge ordered that those sentences be served cumulatively upon the completion of a sentence of imprisonment which Mr Sparks was then undergoing. That sentence was imposed on 12 April 2005 in the Roma District Court, where Mr Sparks was sentenced to a total term of three years three months imprisonment, less 178 days already served in pre-sentence custody. The result of the orders made on 8 March 2006 was that a three year three month period in custody ordered on 12 April 2005 in the Roma District Court became a possible seven year three month maximum term in custody, and the minimum period to be served increased from (potentially, the whole of the) three years three months as at 12 April 2005, to a minimum four year nine month period in custody. That was both a very significant increase in the head sentence, and a significant increase in the period of actual minimum custody.

4. Reference to Mr Sparks’ criminal history shows that a considerable degree of severity was warranted. Putting aside more minor matters, on 6 December 2002 Mr Sparks was dealt with in the Brisbane District Court for an offence of breaking and entering committed on 11 June 2001; two offences of the dangerous operation of a motor vehicle, one committed on 11 June 2001 and one on 14 May 2001; an offence of receiving stolen property committed between April and October 2001; and other offences such as publicly soliciting for prostitution in May 2001. He was sentenced to 18 months imprisonment, to be suspended for an operational period of two years after he had served six months of that 26 days of pre-sentence custody between 17 January 2002 and 11 February 2002 was declared time already served. He would have been released in accord with those orders in late April 2003.

5. The offences for which he was sentenced in the Roma District Court on 12 April 2005, to three years and three months less the 178 days, were actually committed on 8 June 2003, as to four offences of wilful damage and eight of entering premises, and another – of entering a dwelling – was committed on 21 April 2003. That last offence must have been committed almost immediately upon his release from custody; the offences in June 2003 followed very soon after.

6. As it happened, Mr Sparks had appeared in the Maryborough District Court on 11 February 2005, when he was dealt with for two offences of receiving, recorded as committed between 2 November 2002 and 7 December 2002. A moment’s reflection will reveal that he committed those offences just before his appearance in the District Court on 6 December 2002; indeed, the second offence of receiving, if the date charged is correct, was actually after he appeared in the District Court. Most likely, it was just before.

7. Returning to the narrative, the offences committed on 8 June 2003 happened between the evening of Saturday 7 June and the morning of Sunday 8 June 2003, in Roma, when there was a major break-in at the Westlands Plaza Shopping Centre. A number of shops in the complex were entered and property was taken or damaged, after the thieves gained entry through the roof of the shopping centre. The appeal record does not reveal the value of what was stolen. Mr Sparks’ brother Luke, and another man Robert Jervis, pleaded guilty to those offences, but Mr Sparks had a trial in which convictions were ultimately returned in April 2005. He had been in custody from 8 June 2003 until 2 December 2003, the 178 days taken into account as time already served, and while on bail awaiting that trial in Roma he committed the two offences of breaking and entering for which he was ultimately sentenced on 8 March 2006 in the Mackay District Court. Those offences were committed, I repeat, between 11 June and 15 June 2004. They were described in the sentencing remarks of the learned judge imposing sentence on 8 March 2006 as ones in which a great deal of property was taken and a number of safes were broken into; the offences involved pre-planning and entry from the roof of a shopping centre into a number of shops (12) in the Centre. As the judge remarked, “you really just duplicated what you had done in another country town at Roma only 12 months before over this same weekend in June.”^[1] 

8. Mr Sparks was held in custody from 17 June 2004, obviously after his arrest on those two most recent offences, and has remained in custody since then. The 299 days from 17 June 2004 until 11 April 2005, i.e. until the sentences in the Roma District Court after the verdict against him on 12 April 2005, were declared as time already served in respect of the sentences imposed on 8 March 2006.

9. When sentenced on 12 April 2005, Mr Sparks was sentenced to two years three months imprisonment for the offences of breaking and entering and wilful damage, and that was ordered to be served cumulatively on the activated 12 months of the partly suspended term imposed on 6 December 2002, in respect of which Mr Sparks had of course re-offended during the operational period, by committing the April 2003 and June 2003 offences so soon after being released from prison. The question is whether the sentences now imposed upon him are manifestly excessive or otherwise offend the principle of totality, by adding too greatly to the sentence he did receive in April 2005, in respect of offences he had already committed by that time and for which – had he been of a mind to plead guilty at that time – he could have been dealt with in Roma in April 2005. This principle requires a sentencing court to take into consideration the matters described in Mill v The Queen (1988) 166 CLR 59 at 63 and 66, where the joint judgment in the High Court requires that a sentencing court review the aggregate result reached when sentences are passed in respect of a series of offences, and consider what would have been the effective head sentence if the offender had been sentenced at the one time in the one court. 

10. If Mr Sparks was sentenced in April 2005 at Roma for the offences committed in June 2004 when on bail at Mackay, and for that offence of receiving committed back in November 2002, and also committed just before he appeared in the District Court in December 2002, it is obvious that the term of imprisonment imposed on him in April 2005 would have been significantly longer. But I do not think it would have resulted in as much as four years being added to the head sentence.

11. It is much more likely, and appropriate, that the sentence imposed in April 2005 would have been in the order of a five year sentence rather than a seven year sentence. The extra 21 months would have reflected the commission of another two serious offences of breaking and entering, each committed when on bail. Two shopping centres were the scenes of those crimes, committed on the Queen’s Birthday weekend in mid-June 2004. As with the offences in Roma, access was gained through the roof, once inside various stores were entered, and safes in those were opened to get cash. He stole a total of $11,606 in cash, and damaged or took another $3,126 worth of property. As usual, Mr Sparks was caught soon after. Since December 2002, he has been out of jail for April and May 2003, and from early December 2003 to mid-June 2004. He should think about the cost to himself, the victims, and the community, of his pattern of re-offending and being jailed. He is now 24 years old and his life as a young man is being spent in prison.

12. It is unlikely that Mr Sparks would have received more than a five year head sentence if all offences had been dealt with in Roma in April 2005. The Crown could not have complained about a sentence in which a four year term for all those offences was made cumulative on the 12 month activated suspended sentence. On this appeal, the Crown particularly relied on the sentence imposed by this Court in R v Meredith [2002] QCA 481^[2], but that was a total effective term of five and a half years, less than the seven years three months here.  Mr Meredith had a worse record than Mr Sparks, committed more offences, and was sentenced on the basis of stealing much more in value than what Mr Sparks stole.

13. I would allow the application and appeal, and set aside the four year head terms imposed in respect of counts 1 and 2 on the indictment numbered 40 of 2006, for the offences of breaking, entering, and stealing, and order instead that Adam Shay Sparks be sentenced to 21 months imprisonment for each of those offences, those sentences to be concurrent but to be cumulative upon the sentences imposed on 12 April 2005; and declare that the 299 days spent in custody from 17 June 2004 to 11 April 2005 to be time already served under this sentence.

14. HOLMES JA:  I have read and agree with Jerrard JA’s reasons and agree with the orders proposed.