R v Johnson[2014] QCA 13

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Fraser JA.  I agree that the application should be refused, for those reasons.

[2] FRASER JA:  The applicant pleaded guilty to ten property and drug related offences committed between mid-November and the end of December 2012.  He was sentenced to three years imprisonment for each of four burglary offences and an offence of unlawful use of a motor vehicle with a circumstance of aggravation, and to shorter terms of imprisonment for the other offences.  The sentences were ordered to be served concurrently with each other but cumulatively upon a sentence of four years imprisonment the applicant was already serving.  A parole eligibility date was set on 8 December 2015, six months after the expiration of the previous sentence.  The applicant has applied for leave to appeal against sentence on the ground that the head sentence is manifestly excessive.

[3] In the burglary offences, the applicant broke into houses and stole portable items, including computers, cash and credit cards, and a car.  Occupants of the houses were present when three of the burglary offences were committed.  Stolen credit cards were used by the applicant in frauds or attempted frauds.  The car and much of the other property was recovered, leaving a total unrecovered loss of about $5,000.

[4] The applicant was 32 years old when he committed the offences.  He had a criminal history in three States.  His New South Wales history commenced in 2001 when he was 16 years old.  Between then and January 2006 the applicant committed various drug and property offences.  Orders favouring rehabilitation were made, including for suspended imprisonment and for treatment under mental health legislation.  For two offences of common assault the applicant was sentenced to 12 months imprisonment and one month imprisonment, with early release on parole and probation orders.  The applicant’s Victorian criminal history comprised concurrent terms of nine months detention in a youth training centre for offences when the applicant was about 21 years old, including theft of a motor vehicle, assaulting police, and bringing stolen goods into Victoria.

[5] The applicant’s Queensland criminal history commenced with offences he committed in early 2006, when he was 25 years old.  For 43 property offences the applicant was sentenced in the District Court on 17 November 2006 to five years imprisonment with the recommendation for release on parole after 15 or 16 months in custody.  In February 2011 the applicant was given an effective sentence of four years imprisonment for property related offences which he committed between July and October 2009 whilst on parole under the 2006 sentence and for an attempted robbery offence, to be served cumulatively upon the remainder of the earlier sentence.  Parole eligibility was fixed on 11 March 2012.  The judge who imposed that sentence referred to the applicant’s attempts to make progress to overcome his drug habit and observed that the applicant appeared to be doing well.

[6] The applicant committed the subject offences within about seven months after he was released on parole under the 2011 sentence on 24 April 2012.  A report recorded that the applicant’s response to supervision on parole was initially positive but subsequently deteriorated.  The applicant was considered to be not suitable for community-based supervision.  The applicant entered an early plea of guilty.  The prosecutor submitted that an appropriate sentence was four years imprisonment cumulative upon the existing sentence, with parole eligibility on 8 June 2016, one year after the expiration of that sentence.  Defence counsel referred to the applicant’s appalling upbringing – he had an alcoholic mother with a gambling addiction and a violent and abusive father, and was sexually abused by a stepfather – and the commencement of the applicant’s drug addiction whilst he was living on the streets from about 13 years of age.  The applicant had two children and a partner who was pregnant at the time of sentence.  His offending behaviour was attributable to the consequences of his upbringing and drug addiction.  He had made significant attempts to educate himself and overcome his drug addiction.  Defence counsel submitted that an appropriate sentence was four years imprisonment to be served concurrently with the existing sentence with parole eligibility 12 months after the sentence.

[7] The sentencing judge regarded the protection of the community as significant in the sentence because of the applicant’s criminal history and repeated offending whilst on parole.  The sentencing judge referred to the applicant’s age, his attempts at rehabilitation, the necessity not to impose a sentence which would crush him completely, and to the fact that these offences were not as serious as those committed by the applicant in the past.

[8] The applicant criticised what he perceived to be the effect of the respondent’s argument that his attempts at rehabilitation had failed.  Accepting that the applicant has made genuine attempts to overcome his drug addiction and the severe personal consequences for him resulting from his appalling upbringing, a glance at the applicant’s criminal history demonstrates that those attempts have so far not succeeded in a way which justified confidence that he would not re-offend.  The applicant argued that his sentence exceeded that which was just for his criminality and referred to authorities for a proposition that a sentence should not be increased beyond what is proportionate to the crime merely to extend the period of protection of society or to act as a deterrent to others.  That is not to say, however, that a sentencing judge should not take into account the need to deter the offender and others and to protect the community from the offender where those are relevant considerations in formulating the just sentence in the circumstances of the particular case: see Penalties and Sentences Act 1992, s 9(1)(c), (e).  In light of the applicant’s failure to take advantage of many sentences designed with his rehabilitation in mind and his recidivism, the sentencing judge was certainly entitled to regard those matters as relevant considerations in this sentence.  The applicant also argued that a cumulative sentence was not appropriate, but that was again within the sentencing discretion where the applicant had a concerning criminal record which included numerous similar offences and, in a substantial repetition of the applicant’s earlier conduct when released on parole under the 2006 sentence, he committed the subject offences whilst on parole under the 2011 sentence.

[9] The applicant contended in his written outline (although he did not pursue this in his oral argument) that the parole eligibility date was crushing and manifestly excessive and failed to reflect his mitigating circumstances.  He also argued that the sentencing judge erred by not properly applying the principle of totality.  These arguments cannot be accepted.  In Mill v The Queen (1988) 166 CLR 59 at 62-63, the High Court referred to the “totality principle” as requiring a sentencing judge to review an aggregate sentence comprised of a series of properly made consecutive sentences and consider whether the aggregate is “just and appropriate” for the totality of the criminal behaviour.  The range of sentences for serial burglary offences by an offender with a bad criminal history after a plea of guilty to an ex officio indictment had been held to extend at least to seven years imprisonment: R v Weeding [2007] QCA 311 at [8], referring to R v Gates [2002] QCA 320 and R v Bonner [2000] QCA 37.  A sentence of as much as seven years’ imprisonment might be excessive for the particular circumstances of these offences, particularly bearing in mind the relatively small amount of the unrecovered loss, the applicant’s seriously disadvantaged background, his early plea of guilty, and his genuine attempts at rehabilitation, but it was open to the sentencing judge to consider that the range extended significantly beyond three years imprisonment.  So much was implicitly recognised in defence counsel’s reference to a four year term.  The three years imprisonment imposed by the sentencing judge may be regarded as reflecting a degree of leniency which sufficiently took into account the circumstances that the sentence would not commence until 8 June 2015 (the full time release date under the 2011 sentence), which is nearly two years after the date the subject sentence was imposed, and that it would result in a series of sentences totalling 12 years imprisonment of which the applicant must serve a minimum of nine years.

[10] As to the parole eligibility date, it is only six months after the expiration of the 2011 sentence.  The sentencing judge’s discretion to fix the date for parole eligibility was not fettered, but the ordinary expectation resulting from the applicant having breached his parole under the 2011 sentence is that he would be required to serve at least the remainder of that sentence in custody.  Where a term of imprisonment for offences of this character is imposed upon an offender with the benefit of some subjective mitigating circumstances who enters an early plea of guilty and is not subject to any other sentence, the parole eligibility date is commonly fixed at about the one-third mark of the term.  The requirement to serve an additional minimum custodial period of only one sixth of the subject sentence adequately reflects both the applicant’s particular subjective circumstances and some amelioration to take into account the totality of the applicant’s imprisonment under the three sentences imposing an aggregate term of imprisonment of 12 years.  It must be borne in mind of course that part of the custodial period under those sentences resulted from the applicant’s breaches of parole under the 2006 and 2011 sentence.

[11] The applicant cited authorities for his further contention that the total sentence should not constitute a “crushing” sentence upon the prisoner, such as to destroy any reasonable expectation of a useful life after release.  The authorities on this topic were extensively reviewed by Fryberg J in R v Schmidt [2013] 1 Qd R 572, but in this case, as in that case, it is unnecessary to decide whether the fact that a sentence might be regarded as “crushing” provides an independent ground for setting it aside.  The applicant’s parole eligibility date is less than two years distant.  With his full time release date a further two and a half years into the future, if he is refused parole he will still be left with a reasonable expectation of a useful life after release from custody.  Whether the applicant fulfils that expectation is up to him.

[12] I would refuse the application.

[13] GOTTERSON JA:  I agree with the order proposed by Fraser JA and with the reasons given by his Honour.