SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  I agree with White JA's reasons for refusing the application for leave to appeal against sentence.

[2] The applicant primarily emphasised R v Anderson[1] in contending that his six year sentence with no fixed early parole eligibility date was manifestly excessive.  In addition to the matters raised by White JA, I consider there is a further important distinguishing feature between Anderson and the present case.  The six year sentence imposed on the applicant for the offence of burglary also reflected the applicant's criminality in the quite separate, unrelated and serious offence of dangerous operation of a motor vehicle for which he was given a two year concurrent sentence.  That offence concerned the applicant's involvement in a police chase through suburban streets at high very speeds during which it was miraculous that serious injury was not inflicted on innocent members of the community and their property.  By contrast, Anderson's offending was all property-related.  The applicant's effective six year sentence for two separate and serious offences, in the context of his antecedents, made the effective global sentence of six years imprisonment well within range.

[3]  WHITE JA:  On 14 September 2010 the applicant, after entering pleas of guilty, was sentenced to a term of imprisonment of six years for burglary and two years’ imprisonment for the dangerous operation of a motor vehicle with excessive speeding.  No parole eligibility date earlier than the statutory fifty per cent was given.  The applicant was disqualified absolutely from holding or obtaining a driver’s licence.  Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), 205 days were declared as days spent in pre-sentence custody between 22 February 2010 and 14 September 2010.  The applicant was also charged with 10 summary offences including possession of dangerous drugs and numerous traffic regulation violations for which he was convicted but not further punished.

[4] The applicant, who appeared on his own behalf, seeks leave to appeal the sentence imposed for the burglary offence on the ground that it is manifestly excessive.  He particularly complains that he was given no parole eligibility date and contends, by reference to the cases of Anderson[2], Mancktelow[3] and Kothe[4], that he should have been sentenced to four years imprisonment with no early recommendation for parole or five years with a recommendation at the statutory mark of two and a half years.  There is an error in the application insofar as the applicant describes his sentence for burglary as one of six and a half years imprisonment but the pronouncement by the District Court judge was clearly for one of six years and, at the hearing, the applicant acknowledged that he was aware of this error in his application.

[5] The applicant was aged 35 at the time of the sentence and the same age when offending.  He has a very extensive criminal history including numerous offences of breaking and entering and other offences of dishonesty, drug offences, arson and breaches of bail.  His traffic history is equally extensive.  It appears that he has never held a driver’s licence.

[6] The sentence proceeded on an agreed schedule of facts.  The complainant lived with his family at Barney Point near Rockhampton.  The house could be opened only by entering a four digit pass-code into a security system.  Prior to Christmas 2009 the complainant and his family went away on holiday.  Another family was employed to look after the dogs and was given the pass-code to the front door.  The applicant’s 13 year old daughter who was friendly with that family attended with members at the house and became aware of the pass-code.  She passed this code on to her father. 

[7] Early on the morning of 7 January 2010 the applicant woke his daughter, took her to the complainant’s house and had her enter the pass-code into the front door.  The applicant found a safe in a bedroom bolted to a shelf in the cupboard.  He undid the bolts and removed the safe.  When the applicant opened the safe away from the premises it was found to contain about $95,000 in cash and approximately $100,000 worth of jewellery as well as a will and passports.  The applicant took other jewellery from the bedroom.  After he had removed the contents from the safe at an associate’s residence, he dumped the safe, still containing some items of jewellery, on the banks of the Calliope River. 

[8] The applicant hired a car and, with his family drove to Rockhampton.  He spent the next two weeks hiding.  It appears that the applicant contacted a police officer, whom he knew, during this period and made admissions to committing the burglary but did not surrender himself.  His counsel at sentence said that the applicant was fearful of enemies.  He also explained to the sentencing judge that the applicant needed money to fund his then partner’s pregnancy termination (a decision which he did not support).  However, he spent the total amount of cash taken from the safe on drugs and gambling and a Holden Commodore (which he subsequently crashed), a 1999 Kawasaki motorcycle, and on clothing.

[9] At about 8.30 am on 21 January 2010 police were conducting patrols in the Rockhampton area looking for the Holden Commodore being driven by the applicant.  Police identified the vehicle and attempted to catch up with it but the applicant (who subsequently admitted to being the driver) increased his speed to in excess of 140 kilometres per hour, turning down a number of side streets.  A short time later the vehicle was seen to turn into Gladstone Road, a dual lane carriageway with two lanes running north and two running south divided by a median strip.  The carriageway had an extra lane for parking vehicles and for bike riding.  The speed limit in the area was 60 kilometres per hour.  The applicant became aware of the police car closing in on him and accelerated on to the wrong side of Gladstone Road driving in the parking lane, weaving in and out and narrowly avoiding collision with oncoming and parked cars, reaching speeds in the vicinity of 180 kilometres per hour.  Eventually police lost sight of the vehicle.

[10]  On 30 January 2010 police received a tip off that the applicant was at his sister’s house and the next day a search found him hiding in the ceiling.  He participated in a record of interview with police on 1 February and admitted to being the driver of the vehicle and driving on the wrong side of the road to avoid police.

[11]  Authorities were able to recover most of the jewellery including through the assistance of the applicant.  The complainant himself recovered some of the jewellery by buying it back from those to whom the applicant had sold it.  Property to the value of $2,500 was damaged including the safe and its contents.  Of the total value of the property stolen of $195,000, $101,000 (comprised of $95,000 in cash and $3,500 worth of property not recovered, and $2,500 for damaged property) was lost to the complainant.

[12]  At the time he committed these offences the applicant was on parole in respect of a sentence of 12 months imposed on 9 April 2009 (which commenced on 22 February 2009) which included unlawful entry into dwellings or premises.  He had been released on parole on 23 June 2009.

[13]  The prosecution accepted that the applicant had entered an early guilty plea and sought a sentence in the range of five to seven years imprisonment.  The applicant’s counsel agreed.  His counsel opined that with the applicant’s record of breaches it was unlikely that he would be granted parole.  He therefore submitted for a sentence of six years.  The sentencing judge accepted that submission.  The applicant thus faces the difficulties referred to in R v Walsh[5] in having the sentence reduced on an appeal.  While the applicant pleaded guilty and thus facilitated the administration of justice it would be difficult to attribute remorse to him.  He did, however, co-operate to the extent of assisting the complainant to recover some of the lost jewellery.  The description by the sentencing judge that the applicant was a menace to society, showing a blatant disregard for the rights of persons and their property was not misplaced.  Furthermore, the egregious disregard for the safety of other persons on and about the highway called for strong denunciation. 

[14]  The applicant particularly relied on Anderson[6] drawing attention to the similarities with his case.  Anderson was aged 21 when the offences were committed.  He pleaded guilty to three counts of burglary; one count of entering premises with intent; six counts of break, enter and steal; two counts of entering premises and stealing; two counts of entering premises and committing an indictable offence and one count of burglary on ex officio indictment.  He was on an intensive correction order at the time those offences were committed.  Concurrent terms of imprisonment for these offences were imposed, the longest being seven and a half years which related to the theft of currency and property to the value of $134,000 from a dwelling house.  He was recommended for post-prison community based release after two and a half years to reflect his co-operation and other mitigating factors. 

[15]  Anderson had a very extensive criminal history including prison sentences for similar offending.  He was addicted to various drugs and it was assumed that the offending was to support his drug addiction.  The applicant confessed to this range of offences in an endeavour to set his life in order and to rehabilitate himself.  The court considered the comparable decision of Robinson[7] where a 23 year old with a criminal history for offences of burglary and house breaking had pleaded guilty to just under 100 offences of dishonesty, 76 of which were taken into account pursuant to s 189 of the Penalties and Sentences Act 1992.  He had had an unfortunate childhood with an early introduction to heroin by his father to which he had become addicted.  His sentence of seven and a half years imprisonment with parole after two and a half years because of his co-operation was not said to be excessive.

[16]  The court also considered the decision of Gates[8] where a 29 year old applicant with a serious criminal history had pleaded guilty to seven counts of burglary; six counts of stealing; 10 counts of fraud; one of attempted fraud and one of possession of house breaking implements, committed over a three month period.  He had a serious, longstanding heroin problem and had attempted to rehabilitate himself whilst in custody.  While the court regarded a head sentence of seven years as not manifestly excessive, the parole eligibility of three years was said not to have sufficiently reflected the positive factors and a recommendation after two and a half years was substituted.

[17]  In Anderson the court reduced the head sentence of seven and a half years to one of five years with no early recommendation for parole eligibility to recognise his significant co-operation with police which had cleared up a great many serious property offences, his youth and the real risk that he might serve all of his sentence or well beyond the two and a half years intended by the sentencing judge.

[18]  As Mr Lehane, for the respondent submitted, Anderson was very much younger than this applicant – only 21 years – his co-operation in clearing up other dishonesty offences was significant and he had some prospects of rehabilitation from his drug dependency.  In Anderson this court considered whether the parole eligibility recommendation of two and a half years, which had been made to reflect the mitigating factors, would be acted upon and concluded that it was unlikely.  This prompted, in part, the reduction.  Here the issue of parole was squarely before the sentencing judge and it was in the discussion about the likelihood of parole that six years was submitted for.  Accordingly it must be assumed that his Honour had that, amongst other factors, in mind when he imposed six years for the burglary.

[19]  The applicant also referred to Kothe[9] and Mancktelow.[10]  Both cases pre-date the Penalties and Sentences Act 1992 and may, therefore, be regarded as of very limited value.  Kothe appears to have been an Attorney-General’s appeal against a sentence of two and a half years’ imprisonment with hard labour imposed in respect of 12 counts including stealing, breaking, entering and stealing and receiving.  That respondent was aged 26 with a limited criminal history.  He was, however, on probation when he committed the subject offences which Andrews CJ described as having the hallmark of preparedness and pre-meditation.  The sentence was regarded as inappropriate and the court imposed a term of imprisonment of four years with hard labour.  Attorney-General’s appeals rarely offer a safe guide to the appropriate range for an offence, even putting aside that this matter was determined in 1985.

[20]  In Mancktelow the applicant was convicted after a trial for burglary and sentenced to a term of imprisonment of four years.  He appealed against his conviction and sentence.  It appears that the offender and others entered the property of people who were on holidays and took a number of household goods.  That offender was aged 39 and had a substantial criminal history.  The court regarded the sentence as within the discretion of the trial judge and not manifestly excessive.  Again, such a conclusion does not indicate an appropriate range merely that it was not considered excessive. 

[21]  As has been remarked repeatedly, there is no one “correct” sentence for criminal conduct where the court retains a discretion limited only by the maximum penalty which may be imposed.  There is, in most cases, a range which has been established by past decisions of this court which operates as a guide to give consistency and thus predictability to sentencing.  As Mackenzie J observed in Gates:[11]

“The schedule of sentences relied on by the Crown and the applicant shows that while there is a wide range of sentences for these kinds of offences, in a case where there is a lengthy criminal history and a large amount of property, head sentences of the level imposed [which was seven years] are not uncommon for burglary.  Substantially higher penalties can be found but they are generally cases where [the] value of property involved is higher than in this case [$16,000].  Equally, lower sentences can be found which are no doubt affected by their individual facts as well.”

Provided a sentencing judge has not erred in the exercise of the discretion in the manner identified in House v The King[12] or the sentence is not, overall, manifestly excessive, this court will not interfere even though a lesser sentence might have been appropriate.

[22]  No sentencing error has been identified by the applicant and Anderson and the cases discussed therein do not suggest that a sentence of six years is manifestly excessive.  The applicant could well be described as a “career criminal”.  He was a mature man who involved his young daughter closely in his crime; he utterly disregarded any personal property rights of the complainant and his family.  The mitigating features of the plea and his limited co-operation with the authorities and the difficulties which he might experience in obtaining parole were identified and taken into account in the sentence imposed.  The sentence was not manifestly excessive.

[23]  I would add only that the applicant, who acknowledged that he had received assistance in the preparation of his submissions in the prison, conducted his application sensibly, coherently and economically.  Notwithstanding his poor past record, if he conducts himself appropriately in custody and demonstrates a determination to attempt a less crime filled future, the parole authorities may well look favourably on his application for early release on parole.

[24]  I would refuse the application.

[25]  PHILIPPIDES J:  I have had the benefit of reading the reasons for judgment of White JA.  I agree for the reasons therein stated and for the additional reasons referred to by the President that the application for leave to appeal against sentence should be refused.