SUPREME COURT OF QUEENSLAND

[1]  CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the orders proposed by her Honour, and with her reasons.

[2]  KEANE JA:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the orders proposed by her Honour and with the reasons set out by her Honour for making those orders.

[3]  HOLMES JA:  On 23 September 2009, the applicant was sentenced, after a trial, to three years imprisonment in respect of one count of entering premises with intent.  He seeks leave to appeal that sentence, which was made cumulative upon another sentence of three years imprisonment imposed on him on 18 July 2007. 

[4] The entering of premises with intent occurred when the applicant went into a carport in order to steal from a utility parked there.  The owners of the property saw him on the driveway, looking at the vehicle before walking away; soon after, one of them apprehended him with his upper body inside the vehicle, one of the windows of which had been left down.  As was later discovered, the applicant had removed a wallet left in the driver’s side door compartment; it was found on the seat with its contents strewn about, but no property was actually stolen.  When asked what he was doing, the applicant said that he was looking for a friend.  The owner of the house detained him for a short period, demanded identification and took possession of his wallet before letting him go.  The applicant put up no resistance to any of these activities.  He was subsequently contacted by police and voluntarily attended an interview about a fortnight later, in which he gave an account of having hidden in the carport from his girlfriend with whom he had argued.  That version was maintained, unsuccessfully, at trial.

[5] The applicant was 26 years old at the time of the offence.  He had an appalling history of offences of dishonesty.  In 2000, he was convicted in the District Court of numerous offences of unlawful use of motor vehicles, stealing and entering dwellings and was sentenced to imprisonment for six months with three years probation to follow.  He was then 17 years old, and the property involved was worth about $49,000.  In 2001, he was before the court in respect of 27 offences of dishonesty, including unlawful use, burglary and stealing as well as one count of dangerous operation of vehicle.  He was sentenced to two years and six months imprisonment suspended after 12 months.  In 2002 the applicant was back before the court charged with 22 offences including unlawful use, stealing, fraud and receiving and was sentenced to two and a half years imprisonment concurrent with an order that he serve part of the suspended sentence previously imposed on him.  In 2005 he was sentenced in the Supreme Court to 12 months imprisonment on counts of supply and possession of a dangerous drug (heroin), dangerous operation of a vehicle, and property offences including entering premises and committing an indictable offence, unlawful use and fraud, and was sentenced to imprisonment for two years.  In 2007 he was sentenced to three years imprisonment on 28 counts involving, once again, burglary, fraud and other offences of dishonesty, and was sentenced to imprisonment for three years, with a parole release date fixed after nine months.  He was on parole on that sentence at the time he committed the offence under consideration here.

[6] In some of the earlier sentence hearings, allusion was made to the applicant’s being addicted to amphetamines.  On the occasion of the sentence the subject of the present application, a report from his parole officer was tendered.  It said that the applicant had twice when subjected to random urine testing failed to provide a sample.  On two other occasions, the samples provided gave positive results for amphetamine and methylamphetamine.  The result was that his parole had been suspended at intervals, although not cancelled.

[7] At sentence, the Crown prosecutor submitted that a sentence of between 12 and 18 months should be imposed and reminded the learned judge of his discretion to make the sentence cumulative on that which the applicant was already serving; if he were to do so, she suggested, he would set a parole eligibility date.  If the sentence he imposed were 12 months, a date six months hence would be appropriate.  Defence counsel raised the applicant’s drug addiction problems and pointed out that although there had been relapses while he was on parole, he had been described as a positive contributor to a relapse prevention program.  He was close to his family and had support from them.  Counsel urged a concurrent sentence of between 12 and 18 months.

[8] The learned sentencing judge reprised the facts of the offence.  He noted what could be said in the applicant’s favour, which was that he had not resisted the complainant and had provided him with identification.  On the other hand, he had been untruthful in the police interview, had shown no remorse, had a deplorable criminal history, and had committed the offence on parole, only four months after his release from jail.  In light of his history, rehabilitation was secondary to community protection.  A substantial sentence of imprisonment, at the high end of the available range, imposed cumulatively, was required.  His Honour set no parole eligibility date, regarding any parole decision as better made in the future.

[9] Here, counsel for the respondent Crown, Mr Boyle, and counsel for the applicant, Ms Sharp, were in agreement that the sentence imposed at first instance was excessive, given the relatively minor nature of the offending involved.  There was a complicating factor in the case, not recognised at first instance: that the applicant’s full-term release date on his earlier sentence would be affected by the imposition of the second sentence.  Section 209(1) of the Corrective Services Act 2006 (Qld) operated to cancel the applicant’s parole on the sentence imposed on 18 July 2007 once he was sentenced to imprisonment in respect of the present offence.  The effect of s 211(2)(c) is that only those periods during which he was released on parole which fell before the commission of the offence count towards that sentence.  Periods totalling nine months, during which the applicant was at large on parole after that date, did not count towards the earlier sentence, advancing his full-time release date on that sentence into the future by an equivalent period.

[10] Thus, although both counsel at sentence and the learned sentencing judge had acted on the basis that the applicant’s full-time release date on the first sentence was 17 July 2010, we were advised that it is now 13 April 2011, putting his release on the cumulatively imposed sentence of three years at an even more distant point in the future.  Ms Sharp contended that a cumulative sentence of 12 months imprisonment, without the setting of any parole eligibility date should be substituted for the sentence imposed below.  Mr Boyle said that he would not argue against that result, having regard to the over-looked statutory consequences I have outlined.

[11] Counsel are correct, in my view, in submitting that the sentence was manifestly excessive.  What occurred was certainly a minor example of offences of the kind:  it seems to have been opportunistic; there was no forced entry of the vehicle; no property damage or other loss resulted; the applicant was docile when apprehended.  On the other hand, the applicant had shown no remorse and was a recidivist of the first water who had disentitled himself to any lenience.  It was, unquestionably, a proper case for a cumulative sentence; but it was necessary in imposing the sentence in that way to be alive to the need to avoid a sentence that was crushing in its effect, particularly given the applicant’s very poor prospects of obtaining parole.

[12] I would allow the application for leave to appeal and the appeal, set aside the sentence of three years imprisonment and substitute a sentence of 12 months imprisonment, to be served cumulatively on the sentence imposed on the applicant on 18 July 2007.