SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: I agree with Applegarth J.

[2]  FRASER JA: I agree with the reasons of Applegarth J and with the orders proposed by his Honour.

[3]  APPLEGARTH J:  The applicant seeks leave to appeal against concurrent sentences of imprisonment of four and a half years imposed in respect of each of 15 counts to which he pleaded guilty in the District Court on 28 August 2008.  The applicant also was imprisoned for four months in respect of two summary offences, to be served concurrently with the sentences imposed in respect of the indictable offences.  The District Court at Townsville also dealt with the applicant’s breach of a suspended sentence that had been imposed on 7 September 2006.  Nine months of the 20 month suspended sentence were activated.  The concurrent terms of imprisonment of four and a half years in respect of each of the indictable offences were ordered to be cumulative upon the nine months of the activated suspended sentence.  A parole eligibility date of 30 June 2010 was fixed, and a declaration was made that the 258 days that the applicant had spent in pre-sentence custody be deemed time already served under the sentence.  In short, the applicant was sentenced to a total period of five years and three months imprisonment, with a parole eligibility date after serving approximately half of this period (two years and eight months) in custody.

[4] In sentencing the applicant to four and a half years imprisonment in respect of each indictable offence, the learned sentencing judge imposed sentences that exceeded the maximum statutory penalty for the offences contained in Counts 5 and 11 on Indictment No 158/08.  As a consequence, the sentencing discretion miscarried and it is accepted that the applicant should be sentenced afresh.  There is no issue that the new sentences should be structured so as to impose cumulative sentences totalling five years and three months in respect of:

(a)the activated nine months of the suspended sentence;

(b)the various indictable and summary offences that occurred in 2007, each of which should be concurrent with the other;

(c)assaults on police that occurred on 20 March 2008, each of which should be concurrent with the others.

I agree with the submissions of the applicant and of the respondent that this structure is appropriate, and that the evidence supports the following sentences in respect of the indictable offences for which the applicant must be sentenced afresh.

[5] The applicant’s overall culpability for the offences on the three indictments should attract a total period of imprisonment of four and a half years.  Terms of imprisonment should be imposed of three and a half years in respect of the burglary and stealing offences[1] and of lesser periods of imprisonment in respect of the other counts on the first two indictments.  The three offences that occurred on 20 March 2008, namely two counts of assault occasioning bodily harm and one count of serious assault, each warrant a sentence of 12 months imprisonment.  The applicant does not contest that it was appropriate to activate nine months of the suspended sentence.

[6] The issue for the Court is an appropriate parole eligibility date.  The applicant submits that his youth and pleas of guilty should be reflected in a parole eligibility date after one third of the period of four and a half years (18 months) and that a non-parole period of four and a half months in respect of the cumulative nine month sentence would be appropriate.  Accordingly, the applicant submits that he should serve a period of 22 and a half months imprisonment before being eligible for parole.  The respondent submits that, having regard to the nature of the applicant’s offending and his criminal history, the parole eligibility date should be after the applicant has been in custody for one half of the total term of imprisonment of five years and three months.

The applicant’s age and antecedents

[7] The applicant was born in 1985, and was either 21 or 22 years of age at the time he committed the relevant offences.  He has an extensive history of property-related offences from the age of 14.  His criminal history includes entry of dwellings and committing indictable offences, stealing, wilful destruction of property, unlawful entry and unlawful use of motor vehicles, assaulting police and serious assault.  He was sentenced on nine occasions resulting in a range of penalties including suspended sentences, fines, probation and actual imprisonment.  On 13 February 2003 he was imprisoned for two years.

[8] On 7 September 2006 he came before the District Court at Townsville and pleaded guilty to an offence of grievous bodily harm committed on 30 July 2005, which arose out of a dispute over some cigarettes during which the applicant punched the complainant on the jaw.  By 7 September 2006 he had spent 296 days in custody and was facing other charges, including property offences, before the Magistrates Court.  The District Court imposed a sentence of 20 months, wholly suspended for a period of three years.  The sentencing judge told the applicant that he should make a determined effort to keep out of trouble and this required a conscious decision not to drink alcohol.  On 21 September 2006 the Magistrates Court at Townsville imposed various sentences of imprisonment including a sentence of imprisonment of 20 months, wholly suspended for three years.

The 2007 offences

[9] The applicant did not abstain from alcohol and did not keep out of trouble.  On 17 February 2007 he and an accomplice stole two cartons of bourbon to the value of $648 from the Barkly Hotel, Mt Isa.[2]  On 14 March 2007 police intercepted the applicant whilst he was driving a Peugeot convertible. [3]  He fled on foot.  On 3 May 2007 he admitted to police to having driven the vehicle, believing it to have been stolen, but denied having originally taken the vehicle.  He also admitted his involvement in the theft of alcohol from the Barkly Hotel in February.  On 3 May 2007 the applicant was found in possession of three gold watches.[4]  The applicant was granted bail.

[10]  In August, September and October 2007 he committed further offences.  On 29 August 2007 he and accomplices entered a home in Mt Isa through a closed, but unlocked, rear door.[5]  On the same night they entered a unit and stole items including keys to a van.[6]  An attempt to start the vehicle was unsuccessful.[7]  The property that was stolen from these homes included an ipod, mobile phones, a wallet, handbags, jewellery and other items.  They stole the keys to another vehicle and drove it away.  There was a police pursuit at speed when they failed to stop.  The car became stuck in a river bank and the applicant and his companions fled before the applicant was located nearby.[8]  He declined to be interviewed and was granted bail.  Two days later, whilst drinking heavily, the applicant had an argument with the occupant of a home he had been visiting and smashed a glass window after he was ejected.[9]  He was arrested on this charge and granted bail.

[11]  On 18 September 2007, whilst ostensibly looking to purchase liquor at the Mt Isa Irish Club bottle shop, the applicant and others concealed bottles of alcohol under their clothing and removed them from the premises.[10]  On 30 September 2007 the applicant and accomplices entered a home by a closed rear door, and stole jewellery valued at $22,700.[11]  Between 23 and 26 September 2007 the applicant and others entered another dwelling house and stole a set of car keys.[12]  They then used the stolen keys to unlawfully use a vehicle.[13]

[12]  On 1 October 2007 police attempted to intercept the vehicle when it was being driven by the applicant.  The applicant drove the vehicle at a police car, forcing the police to swerve off the road to avoid a collision.  Shortly afterwards, the vehicle being driven by the applicant overturned after colliding with a cow.  The car was valued at $32,000.  The applicant was charged with dangerous operation of a vehicle[14] and various other offences.  He was remanded in custody.

The 2008 assaults on police

[13]  On 20 March 2008 the applicant was being held in the Mt Isa watchouse awaiting a court appearance.  He and two other prisoners were directed to move from the common area of the watchouse to their cells.  One of the other prisoners became involved in a struggle with a police officer.  The applicant left his cell and joined in a violent struggle.  A female officer attempted to assist her colleague.  The applicant punched her head, kneed the other police officer and also held him while the other prisoner tried to spray that officer with capsicum spray.  Other police arrived on the scene and assisted to restrain the applicant and the other prisoner.  The police officers who were assaulted by the applicant and the other prisoner sustained injuries including bruising and required pain killers.  The female officer was subsequently diagnosed as suffering from post traumatic stress disorder and the male officer suffered emotional stress for a period afterwards.  This violent episode on 20 March 2008 resulted in the applicant being charged with two counts of unlawful assault causing bodily harm whilst in company and a count of assaulting a police officer acting in the execution of his duty.[15]

Overview of offending conduct

[14]  The offences that occurred in 2007 included entering and stealing property from four homes, including jewellery valued at $22,700, using car keys found in the homes on three occasions, two of which involved the use of cars that resulted in police chases.  The police chase that occurred on 1 October 2007 endangered police and resulted in substantial, unquantified damage to the car.  In March 2008 the applicant violently assaulted two police while in custody.

[15]  The offences that the applicant committed in 2007 and 2008 were committed during the operational periods of the suspended sentences imposed by the District Court and the Magistrates Court in September 2006.  The offences that occurred in August, September and October 2007 were committed whilst the applicant was on bail. 

Sentences

[16]  The applicant accepts that he cannot reasonably challenge the proposition that the offences on the three indictments merited a total period of imprisonment of four and a half years.  He submits that the appropriate exercise of the sentencing discretion is to impose periods of three and a half years imprisonment in respect of counts 1, 3, 4, 8 and 9 on indictment 158/08 and the offence contained in indictment 398/08 and two years imprisonment in respect of counts 2, 5, 6, 7, 10 and 11 on indictment 158/08.  The respondent submits to like effect, and submits that terms of six months imprisonment should be imposed for certain less serious counts.  I agree with the respondent’s submissions concerning the individual sentences that should be imposed in respect of the 2007 offences, as reflected in the following table:

  Indictment 158/08

Indictment 395/08

The periods of four months imprisonment imposed in respect of the summary offences were ordered to be served concurrently with the 2007 indictable offences.  There is no challenge to this order.

[17]  In respect of the three offences of 20 March 2008 the applicant and the respondent each submit that as these offences occurred during a separate episode it is appropriate for a cumulative sentence of 12 months imprisonment to be imposed in respect of these offences, with each of the sentences of 12 months imprisonment to be concurrent with the other.  I agree with these submissions, namely that the sentences to be imposed will be:

Indictment 394/08

[18]  The learned sentencing judge’s approach in activating nine months of the suspended sentence was appropriate, having regard to the period of 296 days that the applicant served in custody before the sentence was imposed on 7 September 2006.  The activated suspended sentence of nine months is to be served cumulatively with the sentences outlined above.

[19]  The total period of imprisonment of five years and three months (nine months in respect of the activated suspended sentence, three years and six months in respect of certain of the 2007 offences and 12 months in respect of the 2008 offences) is appropriate to reflect the applicant’s culpability.  If the applicant had only been sentenced in respect of the burglary and stealing offences that he committed in 2007 then an appropriate sentencing range for those offences would have been between four and four and a half years.[16]  This was acknowledged by the applicant’s counsel.  The terms of imprisonment of three years and six months reflect the fact that those sentences are to be served cumulatively with the activated suspended sentence and the sentences of 12 months imprisonment for the 2008 offences.  They reflect the totality principle discussed in Mill v The Queen.[17]

An appropriate parole eligibility date

[20]  The applicant’s youth and his pleas of guilty should be reflected in a parole eligibility date.  It is appropriate that the applicant obtain some tangible benefit for his pleas of guilty.  The applicant submits that, consistent with not uncommon sentencing practice, a parole eligibility date fixed at one-third of the total sentence would give the applicant sufficient tangible benefit for his pleas of guilty.  Whilst the applicant’s youth and pleas of guilty should be taken into account in determining an appropriate parole eligibility date, this is not a case in which it is appropriate to fix that date at one-third of the total sentence.  A longer non-parole period is appropriate to reflect the seriousness of the applicant’s offending conduct, its duration, the fact that offences were committed whilst on bail and serving suspended sentences and the need to deter him and others from committing similar offences.  The purposes of punishing the applicant to an extent that is just in all the circumstances, deterring him and others from committing the same or similar offences and helping the applicant to be rehabilitated[18] will be served by the terms of imprisonment stated above, which total five years and three months, and parole eligibility after he has served two years and one month. 

[21]  The period of 258 days (approximately eight and a half months) served in pre-sentence custody prior to the date of sentencing on 28 August 2008 should be declared as time already served under the sentence.  The result is a parole eligibility date approximately 16 and a half months after the date of sentence of 28 August 2008.  An appropriate parole eligibility date is 14 January 2010.

[22]  This parole eligibility date provides the applicant with a tangible benefit for his early pleas of guilty.  It is a date at which point the applicant will have served approximately 40 per cent of his total period of imprisonment.

[23]  Finally, a recommendation is made that the applicant undergo treatment for alcohol abuse whilst in prison.  Such treatment will help his rehabilitation and reduce the risk of re-offending upon his release.  The supervision of the applicant on parole with a view to avoiding future alcohol abuse also may enhance his prospects for rehabilitation and protection of the community from his re-offending.  Simply releasing the applicant without such support and supervision may not.  The applicant requires assistance in prison and upon his release to address his abuse of alcohol.

Orders

1.Application for leave to appeal against sentence granted.

2. Allow the appeal.

3.The sentence of nine months imprisonment for breach of suspended sentences is confirmed.

4.It is declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the 258 days in pre-sentence custody between 1 October 2007 and 28 August 2008 be time already served under the sentence.

5.The sentences imposed on indictments 158/08, 394/08 and 395/08 be set aside.  In lieu thereof order that the applicant be imprisoned for the following periods:

Indictment 158/08

Indictment 395/08

Indictment 394/08

6.In respect of each of the summary offences, the sentences of four months imprisonment are confirmed.

7.The sentences of imprisonment on the counts on indictment 158/08 and 395/08 be concurrent with each other and with the terms of imprisonment of four months imposed in respect of the summary offences.

8.The sentences referred to in order 7 be served cumulatively with the term of imprisonment of nine months for breach of suspended sentences referred to in order 3.

9.The sentences of 12 months imprisonment in respect of each count on indictment 394/08 be concurrent with each other and cumulative with respect to the sentences referred to in orders 7 and 8.

10.The date the applicant is eligible for parole be fixed at 14 January 2010.