R v Whelan[2010] QCA 12

SUPREME COURT OF QUEENSLAND

HOLMES JA:  The applicant was sentenced on 3 September 2009 on pleas of guilty to one count of receiving stolen property, one count of burglary by breaking and one count of common assault.  At the same time the learned sentencing judge was required to take action in respect of the applicant's breaches of a suspended sentence of three years and two months imprisonment and a two year probation order imposed on him in April 2006.  The suspended sentence, which had an operational period of five years, was imposed in respect of nine offences of burglary, one of entering a dwelling with intent by breaking and one of entering a dwelling and committing an indictable offence.  It was activated in full.  The probation order was imposed in respect of two offences of stealing, one of entering a dwelling with intent by break at night, one of attempted entering a dwelling with intent and four offences of entering a dwelling and committing an indictable offence.  The learned judge re-sentenced the applicant to two years imprisonment in respect of those offences but made that sentence concurrent with the term of the previously suspended sentence. 

As to the new counts before the sentencing court, the judge sentenced the applicant to three months imprisonment in respect of the common assault and 10 months imprisonment in respect of each of the counts of receiving and burglary by breaking, making those sentences concurrent with each other but cumulative on the earlier mentioned sentences.  A parole eligibility date was set after 18 months. 

The applicant now seeks leave to appeal.  In respect of the imposition of the whole of the period of suspended imprisonment, that can only be on the basis that the learned sentencing judge erred in concluding that it was not unjust to require him to serve the whole of the suspended imprisonment, while in respect of the remaining sentences no ground is identified other than that they were manifestly excessive.

The property offences which led to the originally suspended sentence involved the theft, with a co-offender, of property amounting in value to $40,000 from nine separate residences, while the attempt was of the commission of a similar offence.  The sentence, as is apparent from the remarks of the judge who imposed it, was suspended having regard to the offenders' youth and expressed intention to rehabilitate themselves, both having been drug addicted.  The probation order was imposed on the further set of property offences in the hope of assisting with that rehabilitation.  The applicant gave up reporting on the probation order before he was halfway through it and disappeared.  The common assault for which the applicant was sentenced in September 2009 occurred about three weeks after he was placed on those orders.  He entered a convenience store with some friends, went to the counter and told the woman serving there that he had a gun and wanted money from the cash machine.  She said that she would telephone the police and began dialling at which point the applicant said that he was only joking and left the store.  He was apprehended shortly after and found to have no weapon.

During the currency of the operational period of the suspended sentence, the applicant also committed the burglary by breaking and the receiving for which he was sentenced in September 2009.  As to the first, in December 2008, the applicant broke into a residence by removing a flyscreen and getting in through a window.  He ransacked a bedroom and was filling a bag with property in the lounge room when police arrived.  He ran from the house, was chased, and was caught.  He was wearing socks on his hands, presumably to avoid leaving fingerprints.  In his car were found a number of items of property stolen in earlier burglaries from nine different residences, although the receiving was charged as a single rolled-up count.  The first of the burglaries was in March 2006, the others over the period between 14 October and 3 December 2008.  The stolen items included commemorative coins, jewellery and cameras, to which the Crown was unable to ascribe a value.

The applicant was 24 years of age when he was sentenced in September 2009.  He had a criminal history.  Of note are offences of entering premises and committing an indictable offence and stealing dealt with in 2003 in the Magistrates Court resulting in probation, and unlawful possession of suspected stolen property and possession of tainted property also dealt with in the Magistrates Court, in 2006, resulting in fines.  His counsel informed the court that he still struggled with addiction to heroin, that in 2008 he had been greatly affected by his mother's death and an aunt's suicide, and that he had a de facto wife and a 13 month old baby.

The learned sentencing judge found that it would not be unjust to require the applicant to serve the suspended sentence, referring to the facts that the offences which constituted the breach were very similar property offences, the burglary involved some forethought, and the receiving entailed a significant amount of property.  The prosecutor had suggested sentences totally five years would be appropriate, given the seriousness of the offences; the figure was not challenged by the defence at sentence, although counsel pointed out that the applicant might experience difficulty in getting parole and asked for a further suspended sentence.  The learned sentencing judge rejected that proposal, unsurprisingly, given the applicant's previous response to a suspended sentence.  However, she reflected the factors in mitigation – the applicant's relative youth and his plea of guilty on an ex officio indictment – by imposing sentences which resulted in a somewhat lower full-term period of imprisonment, of four years.

The applicant has not put forward any reason, apart from his youth and the fact that there were not so many offences, for supposing that it was unjust to require him to serve the whole of the suspended period of imprisonment.  His counsel at sentence offered none and it is difficult to think of any argument that could reasonably have been made.  The learned judge's decision to impose the term in full was clearly correct.  That being the case, the only question is whether the remaining sentences in the context of that activation of the three years two month term were manifestly excessive.

The sentence of two years imprisonment for the property offences, originally the subject of the probation order, was clearly within a proper range and the applicant was afforded the additional leniency of its being made concurrent with the activated suspended sentence.  The applicant complained that he should have been charged with drunken nuisance rather than common assault in respect of his purported hold-up of the convenience store staff member.  That view is beside the point, but in any case he was fortunate in that the sentence imposed was not only a light one, but was made concurrent with the 10 month sentences imposed in respect of receiving and burglary.  Those sentences, too, were light given the seriousness of the offences and the applicant's previous history.  The applicant asks for a parole release date rather than parole eligibility date which he received.  That request is understandable but it is not possible to accommodate given the length of the sentence which was imposed on him.

In imposing those relatively lenient sentences and in ordering eligibility for parole just over a third of the way through the total period of the cumulative sentences, her Honour clearly gave very considerable weight to the applicant's youth and guilty plea.  He has no basis for complaint in the result, which by no stretch of the imagination could be described as excessive.  I would dismiss the application for leave to appeal. 

MUIR JA:  I agree.

CHESTERMAN JA:  I agree.

HOLMES JA:  The application for leave to appeal is dismissed.