SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant, Joshua Adam Walker, pleaded guilty on 8 February 2008 to a number of charges contained in three indictments.  The offences to which he pleaded guilty on the first indictment were unlawfully using a motor vehicle between 27 December 2006 and 5 January 2007, burglary and stealing on 29 December 2006, and fraud, also committed on that date.  The second indictment contained an offence of breaking and entering premises and stealing on 3 January 2007.  The offences to which he pleaded guilty on the third indictment were unlawfully using a motor vehicle between 18 and 23 January 2007, burglary and stealing on 20 January 2007 and dangerous operation of a vehicle causing grievous bodily harm on 22 January 2007.  Mr Walker also pleaded guilty to the summary charges of failing to remain at the scene of an accident and to render assistance and failing to comply with duties as a driver to give particulars at the scene of an accident.  On the second of these he was imprisoned for three months and on the first he was convicted but not further punished.  He was sentenced to four years imprisonment in respect of each of the burglary and stealing counts with lesser concurrent terms of imprisonment in respect of the remaining indictable offences.  A parole eligibility date of 8 August 2008 was fixed, that is, six months from the sentence date.  Pre-sentence custody of 372 days was declared to be time served under the sentence.  He was also disqualified from holding or obtaining a driver's licence for three years.  He applies for leave to appeal against his sentence contending that it is manifestly excessive. 

[2] Mr Walker was 18 at the time of the offences and 20 at sentence.  He had some relevant criminal history.  He was most recently convicted in the Southport Magistrates Court on 12 July 2007 of two counts of possessing dangerous drugs for which he was convicted and fined.  His criminal history in New South Wales, which commenced when he was a child, was more significant.  He was convicted and sentenced to the rising of the court for a minor drug matter and for larceny and possession of suspected stolen goods in the Tweed Heads Children's Court in April and May 2005.  In April 2005, he was sentenced for driving a conveyance taken without consent to a 12 month control order with a nine month non-parole period and release subject to supervision for three months.  He was convicted in February 2005 for possession of goods suspected of being stolen and sentenced to 25 hours community service. 

[3] In April 2005 he was convicted of "drive vehicle recklessly/furiously or speed/manner dangerous" for which he was placed on a nine month control order and disqualified from driving for three years.  He was also convicted and sentenced to a concurrent nine month control order for the offence of taking and driving a conveyance without the consent of the owner and convicted and sentenced to one dollar fines for related traffic offences.  Those convictions arose from a police pursuit over 17 kilometres in Tweed Heads at about 1.30 am on Sunday, 20 March 2004.  Mr Walker, who was then 16 years old and disqualified from driving, was driving the car without the consent of the owner.  He had two juvenile passengers.  The pursuit ended at 1.40 am when the vehicle driven by Mr Walker hit the concrete kerb at speed.  The vehicle was extensively damaged.  Mr Walker and the passengers ran away from the vehicle.  The passengers were found in bushland shortly afterwards.  Mr Walker was located a few days later.  He was interviewed by police.  He admitted that he knew the vehicle was stolen.  He was also found in possession of cannabis which he said was for his own use.  He told police he had a drug addiction, smoking 50 "cones" a day, and had smoked marijuana on the day of the offences. 

[4] The circumstances of the offences the subject of this application were as follows.  On the morning of 29 December 2006 the 75 year old complainant in the first two counts on the first indictment discovered her home had been entered, her car keys, jewellery and other personal items were missing, her garage door had been forced open and her 1988 Toyota Corolla sedan taken.  Mr Walker obtained a loan the following day by using one of her rings as security and falsely claiming it was his.  He admitted to an acquaintance that he had stolen the car and property that were then in his possession.  The car was subsequently discovered in New South Wales where it had been burnt out.  A second ring and a mobile telephone taken from the home were not recovered.  The approximate $9,500 loss to the complainant was paid out by her insurance company.  These facts constituted the three counts to which he pleaded guilty on the first indictment.

[5] In the early hours of 3 January 2007 the complainant on the second indictment had the premises of his business, Rip Curl Pty Ltd, broken and entered.  A glass window was smashed with a rock.  A large amount of clothing and other items were stolen from display cabinets inside.  Mr Walker's acquaintance noted that Mr Walker was in possession of a large amount of Rip Curl property with security and price tags still attached.  The acquaintance reported the matter to police the next day once Mr Walker had left.  The value of the property stolen or damaged was estimated to be $15,500. 

[6] The complainant on the first two counts on the third indictment discovered that his home had been entered on the evening of 19 January 2007.  Flyscreens had been removed from windows to secure entry.  His wife's handbag and contents were missing, together with camera equipment and a global positioning system.  Inside the handbag were a set of keys to the complainant's work vehicle which was also missing. 

[7] At 7.30 am on 22 January 2007 Mr Walker was driving the complainant's vehicle on the Nerang-Murwillumbah Road.  It failed to negotiate a bend and moved onto the incorrect side, colliding head-on with a vehicle travelling in the opposite direction.  The unfortunate driver and passenger of the second vehicle were very severely injured.  Other motorists arrived simultaneously and observed Mr Walker and his passenger get out of the stolen car and run off into bushland.  Mr Walker and his passenger were located by police hitchhiking later that afternoon in the nearby area.  He declined to be interviewed by police.  The complainants were trapped in their vehicle and had to be cut from it.  They were transported by ambulance to the Gold Coast Hospital.  The male complainant suffered a shattered pelvis.  His forehead was split and required 15 stitches.  He had six broken ribs, some of which were broken in two places.  His left shoulder was dislocated.  He spent two days in intensive care before undergoing surgery on 22 January for shoulder and head lacerations.  He remained in traction because of his pelvic injuries until 4 March 2007.  He was then transferred to the Prince of Wales Hospital in Sydney where he underwent further surgery.  At sentence, he was still suffering from the serious physical effects of his injuries and resulting depression.  He had been unable to work since the accident.  The female complainant also suffered serious injuries.  These included a broken jaw, broken ribs and punctured and collapsed lungs.  She had surgery to her jaw to insert two plates.  A fractured wisdom tooth was removed.  She was discharged from hospital on 1 February 2007.  She still requires further surgery to her right lung and jaw and has permanent scarring on her right lung and chest wall.  At the time of the preparation of the police brief, her jaw was still numb and she suffered continual aches in her legs. 

[8] The prosecutor at sentence submitted that the seriousness of the offending and its disparate nature required a head sentence of three years imprisonment.  The applicant had pleaded guilty at an early stage after a full hand-up committal.  He should be placed on parole rather than be subject to a suspended sentence because he clearly needs supervision.

[9] Defence counsel emphasised the following matters.  Mr Walker was very young at the time of the offending and at sentence.  There was no evidence of excessive speed or other exacerbating features in respect of the driving offence.  He was tired and that was why he drifted onto the incorrect side of the road.  The accident occurred on a difficult bend where the speed limit was 80 kph.  He had not smoked marijuana since his arrest and detention in custody.  He had a difficult background but his mother was in court to support him.  He had a position available as a plasterer's apprentice.  A global sentence of up to three years, or a little less, was appropriate but, because of the time he had already spent in custody, his immediate release on parole was warranted.  Defence counsel referred to a number of comparable sentences in respect of dangerous driving causing grievous bodily harm or death which he contended supported his submission as to sentence.

[10]  In sentencing, the judge referred to the number and seriousness of the offences to which Mr Walker had pleaded guilty.  He particularly noted the drastic consequences for the victims of his dangerous driving offence.  He also noted the amount of property which had been lost or destroyed as a result of Mr Walker's offending.  His Honour concluded that neither counsel's submissions as to the appropriate penalty reflected the gravity of the offences committed by Mr Walker.  His Honour then imposed the sentences set out in paragraph [1] of this judgment.

[11]  Mr Walker appeared for himself in this application.  He emphasised his youth;  his early plea of guilty and full hand-up committal; that he had spent over a year in custody before sentence during which he had remained drug-free; and that he had begun his rehabilitation.  He emphasised that his mother was at sentence to support him and that she and her partner had also attended the appeal court to support him.  He had a home with them when he was released from prison.  He emphasised that he also had employment available to him.  He contended the sentencing judge gave insufficient weight to these factors so that the sentence was manifestly excessive.  With the consent of Mr Fuller, who appeared for the respondent, he handed up a reference from his prospective employer, a negative drug screening test from a sample taken 23 June 2007, a letter from Queensland Health indicating that on his release from prison he would be able to seek assessment and counselling for drug abuse; and a letter from "Advance2Work" indicating that upon his release from prison he would have personalised assistance during his initial return to the workforce.  Mr Walker particularly emphasised that he was unlikely to gain parole at or near the eligibility date set by the learned primary judge because he had only recently been transferred to Woodford Prison and was still on the waiting list to complete programs which were ordinarily required to be completed before release on parole.

[12]  Mr Fuller, who appeared for the respondent, made the following submissions which reflect his customary balance.  The effective total sentence imposed by the learned primary judge was within the appropriate range and not manifestly excessive.  But the judge had not been informed, as he could and perhaps should have been, that in imposing an effective sentence of more than three years imprisonment with parole eligibility rather than a sentence of three years imprisonment or less with a fixed date for release on parole,[1] the judge did not give full effect to Mr Walker's lengthy pre-sentence custody.  This is because, had Mr Walker served this period in custody under the sentence rather than as pre-sentence custody, he could have completed the necessary rehabilitative programs ordinarily required by the Parole Board before releasing a prisoner on parole.  He had been unable to complete them whilst on remand and would be unable to complete them by the parole eligibility date.  For that reason, the judge acted on a material factual error in determining the sentence to be imposed on Mr Walker.  This Court was therefore entitled to re-sentence him. 

[13]  In this case, the concession made by Mr Fuller seems right.  Had the judge been in possession of these relevant facts, he may well have imposed a differently structured sentence.  It follows that this Court should grant the application for leave to appeal, allow the appeal to the extent of setting aside the sentences imposed in respect of the burglary and stealing counts, and re-sentence Mr Walker on those two counts. 

[14]  Mr Walker was but 18 years old when he committed these offences over approximately four weeks in late December 2006 and January 2007.  He had a moderately troubled upbringing and at the time of his offending was heavily abusing marijuana.  The offences were serious: in nature, diversity and quantity.  His spate of criminality was responsible for the loss and destruction of tens of thousands of dollars worth of property.  He is also responsible for ruining the health of the victims of his dangerous driving, probably permanently.  The maximum penalty for that offence was 10 years imprisonment[2] and, for the burglary and breaking and entering offences, life imprisonment.[3]  Community protection[4] and personal and general deterrence[5] are important factors in the exercise of the sentencing discretion in this case. 

[15]  On the other hand, there seems to be a real prospect that the lengthy period of detention (12 months at his original sentence and now 16 months) has provided a much-needed circuit-breaker in Mr Walker's life.  The additional material placed before this Court supports the submissions made at first instance that Mr Walker has been drug-free since his detention in custody and that he has prospects of remaining so.  He is fortunate to have the support of his mother and to have an apprenticeship available to him on his release from prison.  He has told us, with some supporting documentation, that he is keen to take part in programs to assist him in remaining drug-free and in useful employment after his release. 

[16]  The best way of giving adequate recognition to Mr Walker's pre-sentence custody, his youth, his promising rehabilitative prospects and his need for support and structure upon his release into the community is to impose a sentence, on each of the two burglary and stealing counts, of three years imprisonment and to fix a parole release date at the time originally suggested by the sentencing judge, 8 August 2008.  This sentence will ensure that he, and those supporting him, can make firm plans for his future rehabilitation in the community.  He will by then have spent over 18 months in custody and will additionally be subject to the firm community supervision and control of a parole order for, effectively, one and a half years.  This sentence balances the competing issues of community protection and personal and general deterrence with the mitigating factors in this case, the most significant of which are Mr Walker's promising prospects of rehabilitation.

Orders:

1. Application for leave to appeal against sentence granted.

2. Appeal allowed to the extent of setting aside the sentence imposed on count 2 of Indictment 7968 of 2007 (8) and count 2 of Indictment 7969 of 2007 (4) and instead ordering on each of those counts that the applicant be sentenced to three years imprisonment with a parole release date fixed at 8 August 2008.

3. Declare 372 days from 23 January 2007 to 17 October 2007 and 26 October 2007 to 8 February 2008 as time already served under the sentence.

[17]  KEANE JA:  I agree with the reasons of the President and with the orders proposed by her Honour.

[18]  MACKENZIE AJA:  I agree with the orders proposed by the President for the reasons given by her.