SUPREME COURT OF QUEENSLAND

HOLMES JA:  I will ask Justice Fraser to give his reasons first.

FRASER JA:  On 8 November 2007, the applicant was convicted on his pleas of guilty to 19 property offences committed between 1 December 2006 and 22 March 2007.  The learned sentencing Judge proposed a sentence of four years' imprisonment on each count, other than for a count of attempted fraud, in respect of which the applicant was sentenced to 12 months' imprisonment.  All of the sentences are to be served concurrently.

A declaration was made that the applicant had spent 230 days in pre-sentence custody solely in relation to those offences, and his Honour fixed a parole eligibility date at 23 July 2008, corresponding with about one-third of the term.  The learned sentencing Judge also took into account eight summary offences under section 189 of the Penalties and Sentences Act 1992.

The applicant applies for leave to appeal against his sentence on the ground that it is manifestly excessive.  Because that application was filed about two months out of time, the applicant also applies for an extension of time within which to bring his application.  An affidavit filed by his former solicitor explains that the application for leave to appeal was not lodged in time because of an administrative error within the office of the solicitor.

There is therefore an adequate explanation for the delay in applying for leave.  I would be prepared to grant the necessary extension of time if it were justified by the merits of the application for leave to appeal.  The ultimate question being whether it is in the interests of justice to grant the extension - See R v Tait [1999] 2 Qd R 667 and 668 - it is appropriate to consider the merits of the application for leave to appeal.

The value of the unrecovered property involved in the offences was $26,464.  The offences involved breaking into five private dwellings and stealing numerous items, some of which the applicant later pawned.  The applicant also stole a vehicle from one of the dwellings.  He broke into a shopping centre and one of the shops within that centre.  He stole a safe containing over $2,000 in cash.  He also broke into another business premises, but was interrupted before he could steal any items from there.

The applicant committed 18 of the 19 offences whilst he was on bail for the first offence, which he had committed on 1 December 2006.  The applicant has a significant criminal history.  In 1998, in the Australian Capital Territory, he was sentenced to a total term of imprisonment of three years with a non-parole period of 12 months for offences including 10 counts of burglary and nine counts of theft.

Between early 1997 and late 2003, he was sentenced in New South Wales for a very large number of offences, mainly property offences, to a variety of terms of imprisonment.  That included one term of 18 months with a non-parole period of 12 months imposed in May 2002 for offences committed in late 2001, and a number of terms of imprisonment of 12 months.  The most recent of those sentences was imposed in May 2003 for offences committed earlier that year.

In June 2004 in Queensland the applicant was sentenced to three years' imprisonment with a recommendation to be considered eligible for post-prison community-based release after serving one year imprisonment, for offences committed in September 2003 of being in a dwelling with intent to commit an indictable offence and robbery with actual violence.  The facts were that the applicant took a purse from the owner of a dwelling who arrived home when he was in the process of robbing her house.  That offence was committed a very short time after the applicant had been released from custody in New South Wales.

The offending the subject of the current application commenced within three months of the applicant's release from prison following the Queensland sentence imposed on 18 June 2004.  The learned sentencing Judge accurately described the applicant's record as involving consistent offending.  His Honour also pointed out had the applicant not committed these offences whilst on bail, a more lenient view might have been taken of his position.

The learned sentencing Judge took into account in the applicant's favour that he had been clear of drugs since the screenings between May and August 2007, and that he did cooperate with the police - albeit on the basis that they had independent evidence.  The sentencing Judge gave the applicant credit for cooperating in the administration of justice.  That is reflected in the early parole eligibility date fixed by his Honour.

In my opinion, there is no basis for thinking that in these circumstances the sentence of four years' imprisonment coupled, as it was, with the early parole release date, is manifestly excessive.

In R v Bryant [2007] QCA 247, Jerrard JA, with whose reasons de Jersey CJ and Mullins J agreed, conducted an extensive analysis of sentences imposed in comparable cases.  Justice Jerrard observed at [11] that the decisions in R v Easton [2002] QCA 110, R v Karbanowicz [2003] QCA 543, R v Lennon [2005] QCA 10, R v Muscat [2005] QCA 129, and R v Weston [2005] QCA 176 generally supported sentences in the order of four to four and a-half years imprisonment with a significant degree of suspension before the midpoint of that sentence for offenders with prior criminal histories engaged in recidivist theft causing loss of property exceeding $20,000.

The value of the unrecovered property here was as I have mentioned in excess of $20,000, and in the light of the applicant's record, recidivist theft is an apt description of those offences.  The applicant in R v Bryant was given a sentence of four years' imprisonment with a parole eligibility date fixed after 18 months; that is, he was given a sentence very similar to that imposed upon this applicant.  It is to be noticed that Bryant, who had an extensive criminal history not unlike that of this applicant was convicted only of nine different offences causing a loss of little under $6,500 to different businesses by property stolen or damaged.

That the applicant here, who committed considerably more offences and caused a significantly higher loss, received only the same sentence is explicable by the matters taken into account in his favour mentioned earlier.  It is clear, however, that the sentence could not be regarded as "unreasonable or plainly unjust" so as to give rise to an inference that the sentencing discretion miscarried; House v The King (1936) 55 CLR 499 at 504-505.

The applicant argued that the sentence should have been suspended at some point.  In light of the applicant's significant criminal history, in my opinion, the early parole eligibility date was a significant recognition of the applicant's plea of guilty.  That being so, the proposed application for leave to appeal could not succeed and it is therefore not in the interests of justice to grant the extension of the time which the applicant seeks.

I would refuse the application for an extension of time within which to apply for leave to appeal against sentence.

HOLMES JA:  I agree.

CHESTERMAN J:  I agree.

HOLMES JA:  The order will be as Justice Fraser has indicated.