R v Wesener[2012] QCA 149

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  The applicant seeks leave to appeal against a sentence of nine years imprisonment, with parole eligibility at the halfway mark, imposed when he was convicted after a trial of one count of breaking and entering premises and stealing.  He was, at the same time, sentenced to concurrent terms of imprisonment, ranging between six months and 12 months, for a number of other offences of dishonesty committed in the interval between the burglary offence and his arrest, but he does not seek leave to appeal in respect of those sentences.  He argues that the sentence imposed on the burglary count was manifestly excessive, both as a general proposition and, more particularly, as a matter of parity: a co-offender, Shane Lewis Mundy, was sentenced to eight years imprisonment for the same offence.

The offence and the applicant’s role in it

2. The offence in question involved the theft in 2007 of 55 weapons, ammunition and magazines from a gun shop operated by the Sporting Shooters Association of Australia. The stolen items had a value of approximately $30,000, and about $6,000 was taken from the business’ safe. Entry to the premises was obtained by cutting through the roof and ceiling. Shoe prints on the roof of the premises matched shoes belonging to the co‑offender, Mundy.  A number of steps were taken to ensure that those breaking in were not detected: the security alarm was disabled, telephone lines to the building were cut, and the video surveillance system was disabled and its hard drive taken.

3. Most of the weapons taken were hand-guns, but there were also some shotguns and rifles. Mundy was found in possession of one of the hand-guns; he had sold four other firearms. There was evidence, which the learned primary judge acted on, that the applicant had been in possession of a large number of the guns within a day or so of the break-in. A witness at his trial said he had shown her his double bed covered in guns, telling her that there were about 60 firearms, and he had half of them. He said that he and a few other mates “did a job over at Ipswich”.  Subsequently, she heard the applicant telling her boyfriend (the applicant’s brother) that they had gone “in through the roof”.  He asked whether they wanted to buy any of the guns.  She and another witness said that prior to the burglary, the applicant had rented and repeatedly watched a film which showed a criminal robbing banks by entering premises through the roof, stealing surveillance tapes and cameras; and, they said, the applicant owned and had read a book on the same subject.

4. Some of the weapons were ultimately recovered. A hand-gun was found next to the body of a man who had killed himself; it had originally been sold by Mundy, but had changed hands a number of times before passing into the possession of the man who used it to commit suicide. Another was found in possession of a man who said that he had purchased it for protection, fearing retaliation for some contentious drug dealing. Another firearm had been used to shoot a woman in the face. None of those firearms were shown to have been in the possession of the applicant.

5. Eleven months after the break-in, five of the weapons and some ammunition were found by police in a storage shed which the applicant had rented. The serial numbers of the weapons had been removed, but it was possible to identify them as emanating from the gun shop. The sentencing judge found that the applicant was in possession of those guns. She made these further findings: that the applicant had played a significant role in the break-in and was involved in its planning and execution; that he intended to sell the guns on the black market; and that it was very likely the guns would be used in further criminal activity.

The applicant’s antecedents

6. The applicant was aged 25 years at the time of the gun shop burglary, and 29 years at the time of sentence. He had a good work history, was employed before his arrest taking samples for a soil testing company, and had a favourable reference from his employer. While in custody he had completed a number of courses and was working as a gardener. He was in a stable relationship and was engaged to be married. His family supported him and he had good references. The applicant’s criminal history prior to the burglary involving the gun shop comprised, in the main, a number of assault charges, including assault occasioning bodily harm and assault police. They were dealt with in the Magistrates Court, usually by way of conviction and fine, except in one instance in which he was sentenced to one month’s imprisonment suspended for two years.

7. After the commission of the burglary, the applicant was convicted in the Magistrates Court in 2008 of stealing, receiving stolen property, unlawful possession of 10 or more weapons, possessing things used in the commission of a crime, possessing dangerous drugs and possession of suspected stolen property, for each of which he was sentenced to four months imprisonment, with immediate parole.  Those charges arose from the police search of his storage shed.

8. The additional offences for which the applicant was sentenced when he was dealt with for the gun shop burglary were two offences of fraud, offences of forgery, uttering, impersonation, preparing for forgery and two summary offences of possessing tainted property. The fraud offences involved his use of a false licence in another’s name to rent the storage shed and to purchase an oxyacetylene cutting kit and rent gas bottles. The forgery and uttering were detected after police pulled the applicant over for speeding and he presented a driver’s licence in his brother’s name. About two weeks later, the applicant’s vehicle was searched and the speeding infringement notice and the driver’s licence in his brother’s name were found; it was realised that the photograph on the licence was the applicant’s.

9. Searching the applicant’s house on the same day, police found on his computer a template for producing drivers’ licences, driver’s licence layouts and photographs, including photographs of the applicant (leading to the preparing for forgery charge). The tainted property charges arose from the police finding in the applicant’s wallet another driver’s licence in his brother’s name with the applicant’s photograph on it, and a Queensland 18+ card in the name of another person, again bearing the applicant’s photograph.

Mundy’s sentence and application for leave to appeal

10. The applicant relied principally on the argument that his sentence displayed a lack of parity with that imposed on Mundy. Mundy, like the applicant, was found guilty after a trial; he received a sentence of eight years imprisonment with a parole eligibility date fixed at the halfway point. His application for leave to appeal against sentence was refused. He was sentenced on the basis that he was not involved in planning the offence but acted as a lookout and helped carry the stolen weapons away from the gun shop. The motivation for the offence was to sell the firearms on the black market.

11. Mundy was 30 years old when he committed the offence, and 33 at the time he was sentenced. His criminal history was summarised in Fraser JA’s judgment on his application for leave to appeal against sentence:

“His prior offending was of a kind which reflected his long standing drug addiction.  The recorded 28 offences included street offences, drug offences, property offences, breaches of court orders, two burglaries, three offences of entering premises and committing indictable offences, two stealing offences, and one offence of receiving property obtained from crime.  The most severe sentences imposed upon him were three months suspended imprisonment in February 2001 and four months imprisonment in February 2003.  After the applicant committed the present offence and before he was sentenced for it, he committed numerous other offences of a similar character to his previous offences.  In addition, one of the numerous offences for which the applicant was sentenced to 18 months imprisonment in June 2010 was a serious assault which he committed in January 2010.  The applicant committed that and many other offences (mostly entering, or breaking and entering premises and stealing) after he had been charged with the present offence.”^[1]

12. Fraser JA noted that Mundy could not claim remorse or co-operation with the authorities; he had offended after being charged. His Honour referred in his judgment to the fact that Mundy was indigenous and itinerant, suffered from severe opioid dependence and was a user of amphetamines and heroin from an early age. He was in a stable relationship with his girlfriend with whom he had a 15 month old daughter. A psychiatrist assessing him did not consider him a serious danger to the community, but his drug habit increased the risk of his being manipulated to commit more serious offences.

13. Examining Mundy’s contentions that his sentence was manifestly excessive, Fraser JA considered at length two previous decisions, R v Munt^[2] and R v Anderson,^[3] which concerned co-offenders who broke into a house and shed and stole property including 45 firearms.  Munt was sentenced to five years imprisonment, Anderson to six.  Anderson applied for leave to appeal against his sentence on the basis that it was manifestly excessive.  He was 30 years old at the time of his offence, and had what was described as a “fairly extensive” criminal history, the most serious entry on which was armed robbery, for which he was on parole when the burglary was committed.  The complicating factor was that he had also to serve two years and eight months remaining from the armed robbery sentence as well as two cumulative sentences of three and four months respectively.  Errors made by the sentencing judge required the Court of Appeal to re-sentence.  The court imposed a concurrent sentence of six years imprisonment, recognising the total criminal conduct entailed in all the offences (those for which Anderson had been, and those for which he was to be, sentenced) by postponing parole eligibility four months beyond the halfway mark of the six year sentence.

14. The applicant in Munt sought an extension of time within which to seek leave to appeal.  The argument turned, so far as sentence was concerned, on a parity argument: that his criminality was significantly less than Anderson’s (it was accepted that Munt was “less involved in the ‘vending’ of the stolen firearms”^[4]) and his criminal history less serious.  He, like Anderson, was serving existing sentences, with which the five year sentence was to run concurrently.  The majority, analysing the situation, noted that Anderson had already served three and a half years before his sentence of six years was to commence, so that taking all his offences into account he had an overall sentence of nine and a half years with eligibility for parole after six years and 10 months.  Munt had served only seven months before his five year sentence commenced, and his minimum period for eligibility for parole was three years and one month.  There was, it was concluded, no disparity in the sentencing.

15. In Mundy, Fraser JA observed that Munt’s criminal history was less serious than Mundy’s, and Mundy’s offence, by comparison with Munt’s, was sophisticated and well planned.  On Mundy’s version, he acted as a lookout without knowing the details of the intended offence, but, after he discovered that its purpose was to steal a large number of firearms, he continued to assist by carrying firearms away.  He must have appreciated, since there was no legitimate market for firearms, that they were destined for resale on the black market.  His subsequent unlawful sales of four of the firearms were uncharged offences which could not be taken into account in determining penalty, but the likelihood of the use of the stolen hand-guns in criminal activity was a factor significantly increasing his culpability and properly taken into account, as was the indirect consequence of the offence that some of the firearms were, in fact, used in criminal activity.

16. Fraser JA considered the culpability of the applicant in Anderson to be less serious than Mundy’s so far as the object and results of the offence were concerned.  Margaret Wilson AJA, who agreed that the application should be refused, noted, too, that Anderson was of limited assistance as a precedent because of the totality issues it involved and because in that case there was no evidence that the stolen firearms would be used to commit other offences.

The parity argument

17. In sentencing the applicant, the judge observed that his role was much more significant and his culpability greater than that of Mundy, warranting a sentence of up to ten years imprisonment. Taking into account the fact that he was younger than Mundy and had a less extensive criminal history, his apparent good behaviour for the last three years and the fact that he had already completed a four month sentence (all, but for two weeks spent in pre-sentence custody, served on parole) for summary offences which included possession of some of the firearms the subject of the burglary, she reduced the head sentence to nine years.

18. The applicant argued that the judge’s findings as to his role did not make him more culpable than Mundy. Both were present for, and took part in, the commission of the offence. It was submitted that it was not of any significance that the applicant was involved in its planning or that Mundy was not: there was nothing to choose between co‑offenders, one of whom had come up with the idea to commit the offence and the other who participated in and profited from its commission.  And whereas there was evidence that Mundy had sold four or five weapons, some of which were subsequently used in criminal activity, there was no evidence that the applicant had sold weapons or that those he had possessed had been used in crime.  Although the sentencing judge found that the applicant intended to sell weapons on the black market, with the likelihood that they would be used in crime, there was no evidence that that had actually happened.

19. There was, it was submitted, a disparity between their personal circumstances. The applicant was five years younger than Mundy with a good work history. Mundy had a more extensive criminal record and had committed a number of offences after being charged with the present offence; he had previously served periods of imprisonment. Given their similar level of culpability for the offence, the applicant should have received a lower head sentence, of seven years, to recognise his more favourable antecedents.

Conclusions

20. The proposition that there was nothing to distinguish the respective levels of culpability of the applicant and Mundy cannot be accepted. The finding was more than that the applicant had “come up with the idea”; it was that he had been involved in planning the details of how the offence would be carried out, including, presumably, the means of entry and the disabling of surveillance mechanisms. Mundy, in contrast, was said to have acted as look-out not knowing what the burglary entailed, although when it became apparent in the course of the offence, his assistance did not cease. The learned sentencing judge was correct in regarding the applicant’s culpability as greater and in concluding that he was “to be sentenced on the basis that he played a much more significant role in the break-in and the theft of the guns”.

21. The evidence did diverge as between Mundy’s sentence and the applicant’s as to the ultimate use of the guns: in Mundy’s trial there was evidence that three of the firearms had been used in a home invasion and two (rather than one) had been used in a shooting. It is remarkable that the evidence should have varied in that way between proceedings, but it is not of great significance in terms of sentencing. As Fraser JA observed, the fact that Mundy had sold weapons could not be taken into account; the important feature was that the firearms were likely to be used in subsequent criminal activity, a circumstance which was said to significantly increase Mundy’s culpability. That was equally the case here. And against the evidence of actual use of the firearms in criminal activity in Mundy’s case was the feature of the applicant’s possession of a much larger quantity of weapons in the first instance.

22. It is the case that Mundy had a considerably worse criminal record than the applicant. The applicant, however, was by no means in a position of virtue; he had been sentenced in 2008, and again with the burglary sentence, for a number of other offences of dishonesty whose nature suggested a casual but consistent criminality. Having regard to his much greater level of involvement than Mundy in the burglary, I do not think that any disparity is demonstrated in their respective sentences.

23. Nor, having regard to the result in Mundy, or that in Anderson, which was relied on by the applicant, do I think that the sentence is otherwise shown to be manifestly excessive.  I agree, respectfully, with Margaret Wilson AJA’s point: Anderson does not stand for the proposition that a six year sentence was appropriate for an offence of the kind; it has to be seen in the context that, for a combination of offences, the applicant in Anderson was to serve nine and a half years imprisonment.  And as Fraser JA observed, what significantly increased Mundy’s culpability (and, even more, the applicant’s) was the circumstance that the stolen firearms would likely be used in criminal activity; it was that circumstance which made general deterrence, reflected in the lengthy head sentences imposed, such an important consideration.

24. I would refuse the application for leave to appeal.

25. FRASER JA: I agree with the reasons for judgment of Holmes JA and the order proposed by her Honour.

26. PHILIPPIDES J: I agree with the reasons of her Honour and with the proposed order.