SUPREME COURT OF QUEENSLAND

[1]  KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by P Lyons J.  I agree that the application for leave to appeal should be refused for the reasons given by his Honour.

[2]  FRASER JA: I agree with the reasons for judgment of P Lyons J and the order proposed by his Honour.

[3]  P LYONS J:  On 2 November 2009, the applicant was sentenced in respect of each of 26 offences (the current offences) to terms of imprisonment of seven years, the terms to be served concurrently.  Orders were made in respect of sentences which had been imposed on the applicant on earlier occasions (the outstanding sentences).  The learned sentencing judge set 1 December 2011 as the parole eligibility date for the applicant.  The applicant seeks leave to appeal against the sentence.  The matter on which his proposed ground of appeal focused is the parole eligibility date.  In his oral submissions he made reference to the length of time he would spend in prison, including his time in custody prior to being sentenced for the current offences.

The offences

[4] The current offences were a series of offences said to have been committed between 4 June 2008 and 13 November 2008.  All of them relate to breaking and entering a dwelling house, in two cases with intent to commit an indictable offence, and in the remaining 24 cases, associated with stealing property from the dwelling.  Each offence carries a maximum penalty of life imprisonment.  Each of the offences was committed in daylight hours (or at the latest, in the early evening), when the dwelling was unoccupied.  The total estimated value of the property stolen and either damaged, or not recovered, was $165,000; however this estimate does not include the value of property the subject of the offences, which was returned to its owners.

[5] The applicant pleaded guilty to the offences.  Indeed, he participated in a “drive around record of interview”, in the course of which, on some occasions, he pointed out places where he committed offences.  The applicant stated that, with respect to the current offences, “he started to break into houses and steal property … sometime in September (2008)”.  In at least one case, the date of the alleged offence was somewhat earlier than the applicant recollected.  In some cases, the applicant did not have a recollection of the offence; in others, his recollection was far from complete.

[6] The commission of the offences was related to the applicant’s drug addiction.

Orders relating to outstanding sentences

[7] On 8 May 2008, the applicant was sentenced in the District Court in respect of a number of offences.  One related to an attempted entry into premises.  Another related to the breaking and entering of premises and the commission of an indictable offence.  A series of other offences related to breaking and entering a dwelling house, and the commission of an indictable offence.  The offences occurred between July and August of 2006.  For the attempted entry, the applicant was sentenced to a term of imprisonment of one year; and for the rest of the offences, to terms of imprisonment of two years and six months, to be served concurrently, with a parole release date fixed as the day of sentence, 8 May 2008.

[8] The applicant was detained in custody in respect of the current offences on 14 November 2008.  His parole in respect of the sentence imposed on 8 May 2008 was suspended indefinitely on 10 December 2008.  The effect of the sentences of imprisonment imposed by the learned sentencing judge in the present case was that the parole of 8 May 2008 was then automatically cancelled.[1]  Accordingly, the applicant was required to serve the balance of the sentence imposed on 8 May 2008.  The learned sentencing judge had a discretion to order that any term of imprisonment which he imposed on the applicant be served cumulatively upon the sentence imposed on 8 May 2008.[2]  However, he ordered that the sentences which he imposed be served concurrently with the sentences imposed on 8 May 2008.

[9] On 22 August 2008, in the Magistrates Court, the applicant was sentenced to a term of imprisonment of three months, wholly suspended, for an operational period of 18 months.  The learned sentencing judge was required to deal with the applicant in respect of the suspended sentence of imprisonment.[3]  The learned sentencing judge considered it appropriate to require the applicant to serve the whole of the three months’ term of imprisonment which had been suspended on 22 August 2008, though that was to be served concurrently with the sentences imposed on 8 May 2008, and the sentences imposed for 2 November 2009.

Other factors influencing sentence

[10]  Undoubtedly, the most significant of these factors was the applicant’s “long and substantial criminal history for similar types of offending dating back to about 1990”.  On a number of occasions, the applicant had been sentenced to terms of imprisonment, including in 1999 a term of five years imprisonment for a number of offences, and in 2006, a term of 18 months imprisonment.  On other occasions, intensive drug rehabilitation orders had been made, and the applicant had been placed on probation.  In light of that history, the learned sentencing judge considered that he needed to take into account the protection of the community and personal deterrence.  His Honour also made reference to the totality principle.

[11]  His Honour also noted that the offences were committed while the applicant was on parole, and a number were committed while he was subject to a suspended sentence.  His Honour also noted the date on which the applicant was sentenced in the Magistrates Court (22 August 2008), though he did not expressly mention that the current offences span that date.

[12]  As has been mentioned, the learned sentencing judge took into account the relationship between the offences and the applicant’s “heroin problem”.  His Honour was plainly impressed by the applicant’s level of cooperation.  His Honour noted that the applicant was born in Vietnam, and had suffered the trauma of war there and of displacement, particularly from his mother (at a young age).  He noted that the applicant’s offending seemed to have commenced shortly after the death of his grandfather.

[13]  The learned sentencing judge also noted the applicant’s age (the applicant was 39 years of age at the date of sentence).

[14]  In accordance with the Pre-sentence Custody Certificate which had been tendered, his Honour declared that a period of 25 days had already been served in respect of the sentence which he imposed.

Parole eligibility date

[15]  Obviously, the setting of this date was a matter that called for the exercise of a discretion by the learned sentencing judge.[4]  The reasoning on which his Honour acted is more apparent from what occurred in the course of argument than from the sentencing remarks themselves.  His Honour there noted that it was usual to set the date, in circumstances where there has been cooperation, at about the date when the defendant had served one-third of the term of imprisonment imposed.  The consequence of that, with the sentence in fact imposed, would have been that the date would be 28 months from sentence, less the period of pre-sentence custody.  After further submissions about the level of cooperation and the fact that the applicant had the support of a partner and had a very young daughter, his Honour advanced the parole eligibility date to some 25 months after the sentence, that is, 1 December 2011.

[16]  The learned sentencing judge was conscious that the applicant had spent 12 months in custody prior to sentence, which was not the subject of the Pre-sentence Declaration.  He was asked to bear this in mind in fixing the parole eligibility date, but considered that to be punishment for earlier offences.  By saying that, his Honour seemed to be indicating that the time already served was time that the applicant was required to serve under the sentences imposed on 8 May 2008, once parole was revoked; and no additional leniency was warranted in imposing sentences in respect of the current offences.  The balance of the term of two years and six months imposed in May 2008 was to be served concurrently with the sentence his Honour imposed, so that it did not extend the length of the applicant’s time in prison.  In those circumstance, in my view, there was no error in the exercise of the learned sentencing judge’s discretion.

[17]  The parole eligibility date set by his Honour seems to me to be consistent with a number of the authorities to which we were referred.[5]  There are, however two authorities which warrant further discussion.

[18]  In R v Morrison[6] an offender had been sentenced to seven years imprisonment, with a recommendation for parole after three years.  The charges included 21 counts of burglary and stealing, two counts of breaking and entering premises and stealing, one count of receiving, and one count of fraud.  The count of receiving in fact “rolled in” 58 offences; and the count of fraud “rolled in” 82 offences.  In committing the offences, the applicant had breached a suspended sentence.  The sentencing judge also took into account a further 38 offences, with the offender’s consent.  The offender had taken a total of $470,000 worth of property.  He had a significant criminal history.  On appeal, the term of seven years imprisonment was not disturbed.  However, parole was recommended after two years, rather than three.  The approach taken might appear, therefore, to be more lenient than the approach taken by the learned sentencing judge in the present case. 

[19]  In Morrison, it is necessary to note that the offender was between 17 and 22 years of age at the time of offending, and 24 years of age at the time of sentence.  His offending was drug-related, and he showed that he had made real efforts towards rehabilitation.  He had had a particularly difficult childhood (though that may not be a real point of distinction from the present case).  His youth, his strong efforts to overcome his drug habit, and the fact that his criminal history was not as lengthy as the present applicant’s, all indicate differences which, in my view are of some significance.  They explain why an earlier date for consideration of parole was appropriate in that case.

[20]  In R v Phillips,[7] the applicant had pleaded guilty to 19 counts of burglary and stealing, three counts of burglary by breaking, one of burglary, and five counts of stealing.  He was sentenced to six years’ imprisonment, and his parole eligibility date was set two years after he was taken into custody.  His offences breached a suspended sentence of imprisonment.  He had an extensive criminal history for offences of dishonesty.  Four of his offences were committed whilst on bail.  His application for leave to appeal against sentence, on the ground that it was manifestly excessive, failed.  It should be noted that that applicant was 26 years of age at the time of the appeal, considerably younger than the present applicant; and his criminal history extended over a period of 10 years, which, while extensive, is nevertheless considerably shorter than in the present case.  The value of the property involved in the offences was a little under $73,000, of which about $5,000 worth had been recovered.  Like the present applicant, he had cooperated significantly with authorities.  His offences were the consequence of a heroin addiction; and whilst on remand, he had demonstrated that he had remained drug free.  It was held that the sentence imposed on him was not manifestly excessive.  It seems to me that this case does not support the view that the parole eligibility date set for the present applicant was inappropriate.  The issue on appeal in Phillips was not what was the correct sentence, but whether the sentence imposed was manifestly excessive.  Moreover, there were features which favoured a more lenient approach in that case, which are not found in the present case.

[21]  I am therefore of the view that the parole eligibility date in the present case was within the scope of the discretion to be exercised by the learned sentencing judge.

Conclusion

[22]  In my opinion, the applicant has not demonstrated sufficient prospect of success on appeal to warrant a grant of leave.  The application should be refused.