SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Mullins J and with the orders her Honour proposes.

[2]  MULLINS J:   The applicant pleaded guilty to and was sentenced in the District Court on 30 March 2009 for nine counts of burglary and stealing, two counts of unlawfully entering a vehicle with intent to commit an indictable offence, one count of stealing, one count of burglary by breaking, one count of unlawfully using a motor vehicle, four counts of burglary and one count of attempted burglary.  The charges were on an ex officio indictment.  Counts 1 to 5 were committed between 20 January and 17 February 2006.  The applicant was convicted of those counts and not further punished.  Counts 6 to 19 were committed between 29 April and 15 May 2008.  For each of the burglary and stealing, burglary by breaking and burglary offences, the applicant was sentenced to four years’ imprisonment.  He was sentenced to two years’ imprisonment for the attempted burglary and the unlawful use of a motor vehicle.  All sentences were concurrent with each other and his existing sentences.  The date for eligibility for parole was fixed at 1 August 2011. 

[3] The applicant was 29 years old when sentenced.  He was then serving a sentence of three years’ imprisonment that had been imposed on him in the District Court on 2 February 2007 for similar offending.  The offences for which the applicant was dealt with on 2 February 2007 were committed during the operational period of a suspended term of imprisonment of three years six months that had 28 months remaining to be served.  That sentence had been imposed on the applicant for similar offending on 19 January 2005.  On 2 February 2007 the balance of that suspended term of imprisonment of 28 months was activated and the sentence of three years’ imprisonment was imposed concurrently with that activated sentence.  The applicant was given a fixed parole release date of 2 February 2008.  It was on his release under court ordered parole that counts 6 to 19 were committed.  That court ordered parole was suspended indefinitely on his return to custody on 12 June 2008.  Prior to the sentences that were imposed on 30 March 2009, the applicant’s full time discharge date was 1 February 2010.  The effect of the sentence imposed on 30 March 2009 was to make the applicant subject to a period of imprisonment (for the purposes of division 3 of part 9 of the Penalties and Sentences Act 1992 (Qld)) that commenced on 2 February 2007 for almost six years one month, with an eligibility for parole date after four years six months.

 Submissions at the sentence 

[4] The applicant’s criminal history was extensive and contained many entries for stealing and breaking and entering offences.  The prosecutor described the offences for which the applicant was being sentenced as entering dwellings by opening closed, but unlocked, doors and taking items such as wallets, handbags, money and alcohol.  The prosecution did not seek any separate sentence of imprisonment for counts 1 to 5, as the prosecutor acknowledged that those offences were committed at the same time as the offences for which the applicant was sentenced on 2 February 2007 and, if they had been dealt with on that date, they would not have resulted in any additional penalty. 

[5] The value of the property stolen and, not located, in respect of counts 6 to 19 was $346.  In the case of count 11, the unlawful use of a motor vehicle was committed, as a result of the defendant using the car keys that he had stolen when he had taken the handbag that was the subject of count 10.  The vehicle was subsequently located and was not damaged. 

[6] The prosecutor relied on R v Bryant [2007] QCA 247 (Bryant) and submitted that the sentence on each of counts 6 to 19 should be a period of four years’ imprisonment cumulative upon the sentences that the applicant was currently serving, with an eligibility for parole dated fixed at 1 August 2011 which was 18 months after the full time discharge date of 1 February 2010 for the existing sentences. 

[7] The applicant’s counsel at the sentencing submitted that a sentence of four years’ imprisonment that was cumulative would be crushing and that, if the sentence were to be four years, it should be concurrent.  It was submitted that if the sentence were cumulative, it should be three years.  The applicant’s counsel supported an eligibility for parole date that was 18 months after the expiry of the applicant’s current sentence which coincided with the date that was put forward by the prosecution. 

[8] The applicant’s counsel described the applicant’s lengthy criminal history as a consequence of his dysfunctional upbringing and his addiction to alcohol and drugs.  He had little paid employment since the age of 15 years and his offending was often motivated by his need for money.

[9] The applicant relied on a report prepared by social worker Mr Conway of the Aboriginal and Torres Strait Islander Legal Services (Qld) Ltd that set out the steps that the applicant had taken to address his offending behaviour since he had returned to custody.  The report suggested that the offending committed whilst on the court ordered parole was in part a return by the applicant to habitual behaviour of entering premises without much actual forethought, but as an habitual response to the stress arising from his adjustment difficulties and knowledge of his inevitable apprehension.  The report indicated there were some signs of the applicant making genuine attempts with the support of his partner to break the habitual pattern of substance abuse and offending. 

[10]  Neither Counsel made submissions specifically directed at the period of imprisonment that would result from the imposition of the sentences. 

 Sentencing remarks

[11]  The learned sentencing judge accepted that the offences were committed because of the applicant’s addiction to alcohol and drugs and there was no element of pre-planning, but the offences were very serious.  The sentencing judge noted the applicant’s dysfunctional background, but that he had undertaken a number of courses whilst in custody that would assist him in obtaining employment on his release.  The sentencing judge accepted the report of the social worker as to the genuine steps being undertaken by the applicant towards rehabilitation.  On the basis of the submissions that were made, the sentencing judge decided that the terms of imprisonment that were imposed would be served concurrently with the applicant’s current sentence.

[12]  In view of the submissions that were made by both the prosecutor and the applicant’s counsel at the sentence, it is not surprising that the sentencing judge opted to fix the date on which the applicant would be eligible for parole at 1 August 2011.  It is implicit in the sentencing judge’s acceptance of that proposed date, that the choice of parole date was affected by the fact that the sentences that were imposed by the sentencing judge would lengthen the applicant’s existing term of imprisonment and the sentencing judge considered that the applicant should remain in custody until after the expiry of the existing sentence.

 Decision

[13]  As the sentence imposed by the sentencing judge did not commence until 30 March 2009, it was being imposed after almost two years one month of the current three year sentence that commenced on 2 February 2007 had been served.  Although the sentence imposed on 30 March 2009 was technically concurrent with the existing sentence, it was largely cumulative in effect.  The sentencing submissions before the sentencing judge did not highlight the practical effect of the sentence that was being imposed. 

[14]  In Bryant, Jerrard JA surveyed the comparable authorities for recidivist offenders of property offences.  The offender in that matter was 35 years old and was described as “a serious and serial property offender” who had pleaded guilty to nine offences involving a loss of almost $6,500 and most of those offences had been committed whilst the offender was on bail or on probation.  On appeal, the sentence imposed on that offender was four years’ imprisonment with a parole eligibility date after 18 months.

[15] Bryant supports the submission made on this application for leave to appeal by the applicant’s Counsel that the sentencing judge gave inadequate weight to the small sums of money involved in and the opportunistic nature of the applicant’s offending.  When this is considered in conjunction with the largely cumulative effect of the sentence, the sentence that was imposed by the sentencing judge was manifestly excessive. 

[16]  Technically the sentencing judge did not have to fix an eligibility for parole date.  Section 160C of the Penalties and Sentences Act 1992 (Qld) applied to the sentence, as the period of imprisonment was more then three years.  As neither s 160C(2) nor s 160C(3) were applicable, the court was conferred a discretion by s 160C(5) as to whether to fix a date for eligibility for parole.  If the sentencing judge had not done so, s 184(2) of the Corrective Services Act 2006 (Qld) would have given the applicant a parole eligibility date after he had served half of the period of imprisonment to which he had been sentenced.  In view of the applicant’s criminal history, it was helpful of the sentencing judge to fix an eligibility for parole date that articulated for the authorities the matters favourable to the applicant that had been taken into account in setting that date.

[17]  On the hearing of this application, the applicant’s Counsel submitted that the effective sentence should have been a concurrent term of three years’ imprisonment and the eligibility for parole date should be fixed at between 15 months to 18 months after the sentence date of 30 March 2009.  Although that eligibility date is past the halfway point of the period of imprisonment that dates back to 2 February 2007, that can be justified because of the overlap of the sentences.

[18]  I would therefore substitute a concurrent term of three years’ imprisonment for each of the terms of four years’ imprisonment imposed by the sentencing judge, with the parole eligibility date fixed at the date which is 18 months after the date of the sentencing.

 Orders

[19]The orders that I propose are:

1. Application for leave to appeal against sentence is granted.

2. Appeal allowed.

3. Set aside the sentence imposed on each of counts 6 to 10, 12 and 14 to 19 and substitute a sentence of three years’ imprisonment and otherwise confirm the sentences imposed on the other counts.

4. Set aside the parole eligibility date imposed of 1 August 2011 and substitute 29 September 2010 as the date on which the defendant is eligible for parole. 

[20]  PHILIPPIDES J:  I have had the advantage of reading the reasons for judgment of Mullins J.  I agree with the reasons of her Honour and with the proposed orders.