R v Walsh[2014] QCA 209

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with A Lyons J that the sentencing judge’s error (the result of counsel’s submissions) as to the supposed need to apply s 156A(2)(b) of the Penalties and Sentences Act affected the exercise of the sentencing discretion.  It means that his Honour was sentencing on the basis that the legislature ascribed to the offences a greater gravity than was in fact the case.

[2] A head sentence of imprisonment of two years is appropriate, having regard to the fact that it is to be served cumulatively and taking into account the applicant’s personal circumstances; more particularly, his significant co-operation in identifying the offences he had committed.  In other circumstances, the mitigating factors might have led to the setting of parole eligibility at something under a third of the head sentence; but having in this case recognised those factors with a lower head sentence, parole eligibility at just under half way is appropriate.  Accordingly, I agree with the orders proposed by A Lyons J.

[3] FRASER JA:  The effective sentence imposed by the sentencing judge on 11 March 2014 was three years imprisonment, cumulative upon an existing sentence of two years and one month imposed on 19 October 2012 (which had a parole release date of 9 March 2013), with parole eligibility on 30 June 2015 (which is about 10 months after the commencement of the subject sentence, and after about 15 months of the total imprisonment of three years and five months to be served from the date of the subject sentence).

[4] For the reasons given by A Lyons J, which I have had the advantage of reading in draft, I agree that the sentencing judge erred in considering that it was mandatory to impose a cumulative sentence.  Holmes JA, whose reasons I have also had the advantage of reading in draft, and A Lyons J consider that this error means that the sentence should be set aside and this court should exercise the sentencing discretion afresh.  That conclusion might not follow in all cases of this kind, but I agree with it in the particular circumstances of this case.  However, I respectfully disagree with my colleagues as to the appropriate sentence which should be imposed in exercising the sentencing discretion afresh.

[5] Offences of the kind committed by the applicant are unfortunately not rare, so it is unsurprising to find that there are closely comparable sentencing decisions.  The circumstances of the applicant’s offences (including the nature of those offences, the amount of loss caused to others, and that he offended whilst on parole) and his personal circumstances (including his relative youthfulness, his seriously disadvantaged upbringing, his extensive criminal history, and that when he was arrested he admitted to many offences other than those charged against him) have many similarities with the circumstances of the offences and the offenders in R v Paton [2011] QCA 34 and the sentencing decisions discussed in that case.  White JA (with whose reasons de Jersey CJ and Muir JA agreed) held in Paton both that a notional head sentence of four years was unremarkable and that there was no error in the sentencing judge’s approach of reducing that notional head sentence to three years imprisonment to take into account the circumstance that the head sentence was to be served cumulatively upon the expiration of an activated suspended sentence of 30 months imprisonment.

[6] As I construe the remarks of the sentencing judge in this case, the same approach was adopted here.  In my respectful opinion that was appropriate.  The applicant’s offending is no less serious than the offending in Paton.  It is true that in addition to offences of unlawfully using a motor vehicle, burglary and stealing, and other offences, that offender committed an offence of dangerous operation of a motor vehicle during the currency of a parole order, which made it mandatory to make the sentence for that offence cumulative upon the expiration of an activated 30 month sentence of imprisonment, but it is apparent that White JA considered that a cumulative sentence was appropriate in any event.  Furthermore, that offender committed far fewer indictable offences than the applicant.

[7] Taking into account the guidance supplied by the analysis in Paton, my view is that the sentence imposed upon the applicant was the appropriate sentence in the particular circumstances of this case.  Upon that view, no point would be served by granting leave to appeal.  I would refuse the application.

[8] ANN LYONS J

The Offences

[9] On 11 March 2014 the applicant pleaded guilty in the District Court at Townsville to an ex-officio indictment charging him with 42 offences which had been committed between 16 May 2013 and 9 June 2013.  They included:

• 13 counts of burglary and stealing;
• 18 counts of unlawfully using a motor vehicle;
• 2 counts of receiving stolen property;
• 1 count of burglary by breaking;
• 2 counts of attempted burglary;
• 4 counts of stealing;
• 1 count of unlawfully entering a vehicle with intent to commit an indictable offence; and
• 1 count of attempting to unlawfully use a motor vehicle.

[10] The applicant also pleaded guilty to three summary offences which were two charges of driving without a licence and one charge of failing to stop a motor vehicle.

The circumstances surrounding the offending

[11] An abbreviated schedule was tendered by the Crown outlining the circumstances of some of the offences.[1]  The schedule indicated that on 13 occasions the applicant had entered people’s homes, often through unlocked doors, and stole items such as wallets, mobile phones, electronic devices, cameras, keys and money.  On most of the occasions the occupants of the homes were asleep and would wake to find their homes burgled and their vehicles missing.  On one occasion the applicant broke into a house through a front door by using an implement.[2]

[12] Once inside the property, the applicant would steal car keys to gain entry to the motor vehicles that were parked at the homes.  He would then drive the cars for a few hours before ultimately abandoning them.  On three occasions he filled the vehicle he was driving with petrol at a service station and then drove off without paying.[3]  On two other occasions he received stolen keys to vehicles and then used those keys to unlawfully use the motor vehicles.[4]

[13] Police received information that the applicant had been involved in stealing cars in the Mackay area and it is significant that when police went to see the applicant he voluntarily participated in an interview on 25 and 26 June 2013 and made extensive admissions detailing his involvement in 39 burglary, stealing and unlawful use of vehicle offences.  He was ultimately charged with 42 offences.

The sentence imposed

[14] In relation to the 13 counts of burglary and stealing, the two counts of attempted burglary and one count of burglary by breaking, he was convicted and sentenced to three years imprisonment.

[15] On the 18 counts of unlawful use of a motor vehicle, the one count of entering a vehicle with intent to commit an indictable offence and the one count of attempted unlawful use of a motor vehicle, he was convicted and sentenced to two years imprisonment.

[16] With respect to the two receiving counts and the four stealing counts he was convicted and sentenced to 15 months imprisonment.  On the three summary charges he was sentenced to 12 months imprisonment.  All of those sentences were ordered to be served concurrently.  He was also disqualified from holding or obtaining a drivers licence absolutely.

[17] That period of imprisonment, however, was ordered to be served cumulatively on the sentence that he was currently serving as both Counsel at sentence had submitted that s 156A(2)(b) of the Penalties and Sentences Act 1992 (Qld) (the “PSA”) applied and mandated that a cumulative sentence be imposed.  That submission was not, in fact, correct.  The applicant was on parole at the time of his offending in relation to sentences which had been imposed on 19 October 2012.  Accordingly s 160B of the PSA applied which provides that if an offender has had a court ordered parole order cancelled during their period of imprisonment the court must fix the date the offender is eligible for parole (as opposed to a date the offender is to be released on parole).  A parole eligibility date was fixed at 30 June 2015 which was 15 and a half months from the date of sentence.  The applicant had been in custody since 9 June 2013, which was a period of approximately nine months, none of which was declarable because he had been on parole at the time all of the offences had been committed.

[18] The earlier sentence that had been imposed on 19 October 2012 in relation to similar offending and an escape from custody was a head sentence of two years and one month.[5]  After a declaration of pre-sentence custody of some 100 days, his parole release date had been fixed on that occasion at 9 March 2013 with a full time release date of 30 August 2014.

[19] Accordingly, as at the date of the imposition of the new sentence on 11 March 2014, the applicant was required to serve the full term of his previous sentence of two years and one month, which was until his full time release date of 30 August 2014.  At the end of that period he was then to commence serving a further three year period of imprisonment with a parole eligibility date after 10 months on 30 June 2015, but with a full time release date of 30 August 2017.

[20] The applicant, who was 19 both at the time of the offences and at the time of sentence, has filed an application for leave to appeal on the appeal on the basis that (a) the sentences imposed were manifestly excessive and (b) that the sentencing judge failed to appropriately recognise the degree of cooperation with investigating authorities.

Submissions of sentence

Crown Submissions

[21] At the applicant’s sentence hearing it was acknowledged by the Crown prosecutor that it was a significant factor that the applicant had made numerous admissions and indeed in relation to 39 of the 42 offences the prosecutor acknowledged that the only evidence consisted of the applicant’s admissions.  Reference was also made to the applicant’s youth and deprived background.  Counsel also made the following submission:[6]

“Your Honour, those matters, in my submission need to be balanced against what the Crown submits are the aggravating factors on sentence. That is, that the offences committed-the offences were committed while on parole and began one day after the prisoner’s release into the community. The offences have also caused considerable loss, damage and anguish to many members of the community.

The prisoner’s criminal history demonstrates, in the Crown’s submission, a propensity to offend in a certain way. Your Honour would be aware of section 9 subsection (8) of the Penalties and Sentences Act, which provides that previous convictions can be treated as an aggravating factor on sentence, however the sentence imposed must not be disproportionate to the gravity of the current offending.”

[22] At sentence a number of cases were also referred to by the Counsel for the DPP in particular R v Paton,[7] R v Bryant,[8] and R v Finch.[9]

R v Paton

[23] In R v Paton, the applicant had pleaded guilty to a number of burglary and stealing offences and offences relating to the dangerous operation of a motor vehicle.  He was 22 at the time of the offences which were committed in a period of less than a month, shortly after he had been released on parole.  He also had a very lengthy criminal history for like offences.  He had three previous convictions for the dangerous operation of a motor vehicle and an extensive traffic history.  He also had 146 convictions for property offences.  When he was sentenced in August 2009 he had previously been convicted and sentenced on 16 April 2008 to 12 months imprisonment in respect of burglary, stealing and unlawful use of a motor vehicle.  He was also dealt with for the breach of a suspended sentence which had been imposed in April 2007 for three offences of burglary.  On 16 April 2008 the magistrate had activated the suspended sentence and ordered the applicant serve 30 months imprisonment with a parole release date some five months later.  At the time of the sentences imposed in August 2009 he was in custody for parole suspension which was revoked automatically following his conviction.  He had a full time release date in respect of the activated suspended sentence of 15 October 2010.

[24] Significantly, in Paton, because the applicant was sentenced for an offence contained in the schedule to the PSA during the currency of a parole order, the court was required to make the sentence for that offence cumulative on the expiration of the 30 month sentence.  The sentence ultimately imposed, which was the subject of the appeal, was “cumulative terms of imprisonment of three years for each of the burglary offences and for the dangerous operation of the motor vehicle and 18 months imprisonment on the other indictable offences on the sentence of 30 months but concurrent amongst those sentences.”[10]  The sentencing judge set parole eligibility after serving a further 12 months from the full time release date and at the one-third mark.  It was argued that he should have been given an intensive correctional order or resentenced to a total of four years with no parole eligibility but a suspended sentence.

[25] Whilst Counsel for the DPP in the Paton appeal acknowledged the applicant’s cooperation, it was submitted on appeal that there were a large number of offences over a short period of time, that the applicant, although young, had a considerable criminal history, and that the total value of the property stolen was significant.  Whilst he had been clearly implicated in the dangerous operation of the motor vehicle and some of the burglary offences there was not a strong case in respect of the other offences and for the majority of the offences the case was based on his own admissions.  It was also submitted that an extensive prior criminal history has an impact upon a choice between the sentence which is intended to act as a deterrent and a sentence intended to encourage and assist rehabilitation.

[26] The Court of Appeal ultimately held that in setting the head sentence at three years the sentencing judge had taken into account the applicant’s age, his full cooperation with police and that any term of imprisonment would be cumulative.  Because of his criminal history, the sentencing judge was not persuaded that a suspended sentence was appropriate and the court held that that was clearly correct.  The Court of Appeal in that decision referred to a number of comparable decisions to support a conclusion that the sentence imposed was within range.

[27] The decision of R v Karbanowicz[11] related to 14 offences of burglary and stealing and other offences including unlawful use of a motor vehicle with a circumstance of aggravation.  A sentence of four years imprisonment for the burglary and stealing offences suspended after 15 months with an operational period of four years was imposed.  In that case some $60,000 worth of property was taken or damaged and some of the offences had been committed on bail.

[28] The Court also referred to a decision of R v Mason[12] where the applicant was 17 at the time the offences were committed and 18 when sentenced.  He was sentenced for numerous offences of burglary and stealing on different occasions which were to be served concurrently.  He was on parole, probation and bail at the time of some of the offending.  He was fully cooperative with police and pleaded guilty on an ex-officio indictment.  About $9,500 remained outstanding.  Whilst a sentence of four years was imposed, and a recommendation made that he be considered for parole after serving 19 months, it was considered that the sentence was high but not manifestly excessive.  The Court on appeal had reduced his eligibility for parole to nine months.  The Court of Appeal also referred to the decisions of R v Reside[13] and R v Theuerkauf & Theuerkauf; ex parte Attorney-General.[14]

[29] Ultimately it was held:[15]

“[21]Those cases would suggest that a head sentence of four years for the multiple burglary offences, bearing in mind the applicant’s lengthy previous criminal history for like offending, would not have been beyond the range. A head sentence of three years for the dangerous operation of the motor vehicle offence, given that the applicant had three previous convictions for that offence together with many traffic offences including driving unlicensed, suggests that a severe sentence was called for. Because the sentence was to be served cumulatively upon the expiration of the activated suspended sentence this required for some moderation when looking at the totality of the sentences. This her Honour did by reducing the head sentence from what would have been an unremarkable four years to the three years. Apart from the requirement that the dangerous operation of a motor vehicle offence was required to be cumulative, there was good reason for imposing a cumulative sentence with respect to the other offending. Her Honour appropriately took into account the plea of guilty and co-operation in the administration of justice by the recommendation for parole after 12 months, that is after serving one-third of that sentence.”

Ultimately, while the decisions of R v Bryant and R v Finch were referred to the prosecutor conceded that they were not directly comparable.  It would seem clear, however, on the basis of R v Paton that a sentence in the order of three to four years was the appropriate sentence.

Defence submissions

[30] Counsel for the applicant at sentence had placed extensive reliance on the fact it was an ex-officio indictment and the extraordinary degree of cooperation which the applicant had provided to the investigating authorities, noting that 39 of the 42 counts were entirely based on his own admissions which occupied some 109 pages of a record of interview and that even though there were a significant number of offences there would have been no evidence if it were not for those admissions.[16]

[31] In his submissions Counsel for the applicant also relied on the report of the psychologist Robert Walkley who indicated that the applicant suffers from an antisocial personality disorder and that came from a deprived background.[17]  Counsel also acknowledged that whilst the chances of recidivism were high and that it could not be ignored that he had reoffended almost immediately upon release, he had in fact implicated himself in the vast majority of the offences.[18]  Counsel also referred to the fact that he had also served a term of imprisonment of some nine months which could not be counted in relation to current matters.[19]

[32] The applicant’s Counsel also referred to the significant family support for the applicant from his partner, his sisters and an aunt.[20]  Counsel acknowledged that the sentences to be imposed had to be cumulative but that it was important to avoid a crushing sentence.[21]  Counsel for the applicant submitted that the cases the Crown had relied upon indicated sentences in the order of three to four years would be appropriate.  However it was ultimately submitted that as there were nine months that could not be declared, the head sentence should be in the range of 18 months to two years with a recommendation for parole at the half way mark as opposed to the one-third mark.  It was argued that as it was an ex-officio plea and there was a significant level of cooperation there should be parole eligibility date at less than a year.[22]  Counsel submitted that such a sentence would reflect the cooperation which he had shown.

The sentence imposed

[33] The sentence imposed was essentially a head sentence of three years with concurrent lesser sentences, all of which were to be served cumulatively on the sentence he was already serving which had an existing full time release date of 30 August 2014.  The new full time release date is therefore 30 August 2017.

[34] The learned sentencing judge then fixed a parole eligibility date ten months after that full time release date at 30 June 2015 which was after a further 15 and a half months in custody.

[35] In imposing that sentence the learned sentencing judge referred to the seriousness of the applicant’s conduct in breaking into people’s homes usually while they were present, stealing their property and using their cars.  He noted the applicant’s youth and the numerous admissions he made and concluded:

“However, you do have a very significant criminal history, including prior convictions for similar offences. Perhaps worst of all, you committed these offences only a day or so after you had been released on parole for a previous sentence. The inevitably of that is that the sentences that I impose today will have to be cumulative. That is, they will commence after the full time expiry date of the sentence which you are currently serving”[23]

[36] There is no doubt that his Honour placed considerable reliance on the decision in Paton which clearly held that a sentence in the order of three to four years was appropriate for this type of offending.[24]  In imposing a sentence of three years for the most serious of the offences it would seem that, although it was not expressly referred to, the learned sentencing judge moderated a sentence of what would have been four years to three years to avoid a crushing sentence obviously on the basis that his Honour clearly considered that there was a requirement that it had to be served cumulatively on the sentence he was already serving.  As I have already stated that was on the basis of submissions from the Crown prosecutor that s 156A(2)(b) of the PSA required such an approach.[25]  That submission was endorsed by the Counsel for the applicant.[26]  Whilst there is no such section it would seem that the submissions probably related to s 156A(1)(b)(ii) and s 156A(2) which provide as follows:

“156ACumulative order of imprisonment must be made in particular circumstances

(1)This section applies if an offender—

(a)is convicted of an offence—

(i)against a provision mentioned in schedule 1; or

(ii)of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and

(b)committed the offence while—

(i)a prisoner serving a term of imprisonment; or

(ii)released on post-prison community based release under the Corrective Services Act 2000 or released on parole under the Corrective Services Act 2006; or

(iii) on leave of absence, from a term of imprisonment, granted under the Corrective Services Act 2000 or the Corrective Services Act 2006; or

(iv) at large after escaping from lawful custody under a sentence of imprisonment.

(2) A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.”

[37] It is clear however that none of the offences for which the applicant was charged are actually offences to which that section applies.

[38] In imposing the sentence that he did, the learned sentencing judge imposed a sentence on the basis that s 156A(2) required a cumulative sentence.  That was clearly incorrect and in my view the sentencing discretion miscarried as his Honour felt constrained as to the sentence he could impose.  Furthermore, as his Honour considered he was required to impose a cumulative sentence he must have considered that at least some of the offences were more serious than they actually were.

[39] Accordingly the application for leave to appeal against sentence is allowed and the sentence imposed on 11 March 2014 is set aside.  This Court should exercise the discretion afresh.

The sentence to be imposed

[40] In coming to an appropriate sentence it is clear that there were a number of aggravating factors.  In particular, all the offences occurred in a three week period between 16 May and 9 June 2013 and were very blatant in their execution, given that on a number of occasions the applicant would steal a car and then put on a show by loading up the cars with large groups of people.  It is also clear that the offending had caused significant property damage and loss to the victims and the value of the property loss and damage had been calculated on the amount which had been paid out by way of insurance which was a total figure in excess of $22,000, given that the items stolen included wallets, phones, cameras, keys and money.  A further aggravating feature was the applicant’s criminal history which occupied 13 pages and which had commenced in the Townsville Children’s Court in 2008, when the applicant was 14 years of age.

[41] It was also argued by the Crown Prosecutor and accepted by the sentencing judge that all of these offences were committed whilst the applicant was on parole and in fact began one day after his release into the community.  On the material before this Court there is no support for that submission.  The criminal history which was Exhibit 1 in the sentencing hearing indicates clearly that the applicant had a “parole release date of 9 March 2013”.  Accordingly that material indicates that the offences commenced nine weeks after his release on parole and not “a day or so after” his release.

[42] In this application the Crown has relied on the decisions of R v Hazelgrove,[27] R v Anderson[28] and R v Gee[29] to argue that the sentence of three years which was imposed was not manifestly excessive.  In particular, it is submitted that the decision in Hazelgrove discusses the interaction between a prior sentence for similar offences and a later one imposed for offences committed in breach of the earlier sentence.  In that decision the applicant was sentenced in relation to two counts of breaking and entering premises and stealing or attempted stealing, three counts of stealing, a further count of burglary and stealing and a count of wilful damage.  The sentences were made concurrent with each other and with the sentence of seven years imprisonment which had been imposed on 22 July 2008 for breaking and entering a dwelling at night whilst armed and in company.  The sentence was imposed on 7 February 2013 and his parole eligibility date was fixed at 3 October 2014.  At the time of sentence his existing full time release date was 3 July 2014, and the date then fixed for eligibility was 9 January 2012.  He was released on parole on 13 February 2012 and returned to custody on 21 November 2012 after suspension of his parole for non compliance with the parole terms.

[43] The offences under consideration in Hazelgrove were committed over a period of a month in October and November 2012 while he was on parole and he had previously offended on parole.  The property stolen was valued at approximately $10,000.  He was 29 years old when sentenced and had an extensive criminal history involving like related offences.  It was argued that the sentencing judge erred in not imposing a sentence of two and a half years with parole eligibility after approximately 14 months.  In that decision the Court concluded that the decision of R v Bryant[30] and the decision of R v Vaughan[31] gave ample support for the sentencing judge’s sentences which demonstrate that having regard to the criminal history, number of offences and the fact that the applicant was on parole at the time of offending, a head sentence of four years imprisonment for the eight counts on the indictment would not have been excessive.

[44] The decision of R v Anderson was also relied upon by the Crown particularly as White J (as her Honour then was) conducted a review of sentences in relation to break and enter offences.  In that decision a sentence of seven and a half years imprisonment was imposed where the applicant had 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 an ex officio indictment, one count of burglary.  At the time the offences were committed the applicant was on an intensive correction order; various terms of imprisonment were imposed, all of which were concurrent along with the seven and a half years in respect of count 10 which involved the theft of Australian currency and foreign currency, as well as property to the value of $134,000 from a dwelling house.  A recommendation was made for post prison community based release after two and a half years to reflect his cooperation and other mitigating factors.  He was found to have breached his intensive correction order and the unexpired term of the order of 237 days was ordered to be served concurrently with the other sentences.  Pre-sentence custody of 154 days was declared.  The applicant there had an extensive criminal history and was aged 21 when the offences were committed and 22 at the time of sentence.

[45] Having reviewed a number of authorities, the Court concluded that a head sentence of seven and a half years was too high, particularly given his significant cooperation with police which had cleaned up a great many serious property offences.  His youth and the fact that there was a real risk he might serve all of his sentence or well beyond the two and a half years intended by the sentencing judge led the Court to conclude that the sentence should be reduced to five years with no recommendation for post prison release.

[46] A further decision relied on by the Crown was the decision of R v Gee where the applicant was 18 years of age and he committed 19 counts of house breaking, six counts of stealing, two counts of entering a building with intent and one count of burglary.  He had a substantial criminal history and at the time of his sentence he was serving a sentence for similar offences.  The new offences had been committed whilst he was on probation and were similar offences.  He was sentenced to four and a half years imprisonment with parole eligibility after serving 15 months.  Due to the overlap of the two sentences, the total sentences came to five years and two months imprisonment with a recommendation for parole after serving 22 months.  It was held that the sentence was not manifestly excessive.

[47] The Crown argues that the sentence in the present case is not manifestly excessive when compared with Hazelgrove, Gee and Anderson, given the applicant committed his offences whilst on parole and the fact that as at the date of his sentence on 11 March 2014, the balance of the new and old sentences left to be served was three years and five months with a parole eligibility after 15 and a half months.

[48] The applicant was self-represented in this application and simply argues that the sentence imposed is “too much”.  It is clear that there were a number of factors of mitigation, all of which were referred to by the sentencing judge.[32]  It was uncontroversial that he had made significant admissions and the charges had been presented on an ex officio indictment.  In particular, the applicant was 19 years of age at the time the offences were committed and 19 years of age at the time of the sentence.  He has three children who were aged five, three and seven months at the time of sentence.  He had been in a long term de-facto relationship with his partner Shannon who was 20 who had had their first child when she was 15 and the applicant 14.

[49] The psychologist’s report by Robert Walkley dated 28 October 2013 indicated that the applicant had grown up in a very deprived situation.  He had in fact spent a large period of his life in the Cleveland Youth Centre, with his first admission at the age of 11.  He also had a background of drug and alcohol use and other criminal behaviour.  He was from a large family of 10 children and whilst he had been raised in the Sarina Mackay area his family was traditionally from Palm Island.  He also left school in grade 5 and started to in his own words “hang out with a bad crowd”.  He noted that the applicant had no employment history whatsoever.[33]

[50] The applicant indicated to the psychologist that he had spent his whole life “in prison”.[34]  The psychological report indicated that there was a strong sense of criminality in his family and that many of his siblings had been incarcerated for serious crimes and that most if not all of his siblings of adult age had been charged with offences and had criminal histories.  It was also noted that his mother had a criminal history.  The psychologist indicated that an antisocial personality disorder was the current diagnosis.  The psychologist noted:[35]

“I did find this man to be remorseful to some extent, not in the terms of the impact of his actions on his victims but rather its impact upon himself and his young family. Indeed, it is this which drives him at the present time. He wishes to serve out his sentence, develop a stronger mind-set with regards withstanding pressures to offend and in so doing, to provide his children with an alternate role model to that which he has so far provided.

He seems to be able to clearly iterate the notion if he does not make changes, his children will then learn from him and the cycle will repeat itself. He seems to be very keen on preventing this from occurring.

In terms of Mr Walsh’s risk of further recidivism, I think his risks are High. He is a man of low educational achievement and a very to non-existent work ethic. As such, he is going to find it difficult, if not impossible, to obtain employment. As such, he is always going to be on the marginal edges of economic sustainability as well as having a great deal of time on his hands.

These factors, when taken together with his youth and the unfortunate realities that beset young male Aboriginals, will conspire to a likely life of recidivism.

Having said that, if Mr Walsh was to embrace his present desire to make a change and to engage with his family and perhaps pursue his aboriginal painting then perhaps, the cycle described above can be altered for the better.”

Consideration

[51] A consideration of the sentences imposed in the decisions of Paton, Vaughan and Bryant and the sentences relied on by the Crown in this application, clearly indicate that a sentence in the range of three to four years is an appropriate sentence for this type of offending.  Given the applicant’s persistence in offending and his lengthy criminal history it would seem to me that as a starting point, a sentence of four years is called for in relation to the most serious of the offences which are the 13 burglary and stealing charges, the two attempted burglary and the one burglary by break.  Lesser sentences should then be imposed for the less serious offences, all of which should be served concurrently.

[52] In my view the sentences imposed should be served cumulatively although such a sentence is not strictly required by the PSA due to the fact that the applicant reoffended some two months after his release on parole.  The imposition of a cumulative sentence reinforces to the applicant the message that his actions, in reoffending in this way, bring with it a separate set of consequences.  Given the sentence is to be served cumulatively on the expiration of the two year one month sentence which he is currently serving, which has a full time release date of 30 August 2014, I consider that the sentence should be moderated to a sentence of three years.

[53] However, I also consider that a further moderation of the head sentence is required to acknowledge the applicant’s significant cooperation and his personal factors; particularly his youth, his deprived background, and the fact he does actually have significant family support including a relatively stable relationship with his partner of five years despite his considerable setbacks.  In my view a head sentence of two years would appropriately recognise these factors.  I would then fix a parole eligibility date after ten months to similarly reflect that cooperation.  In my view simply fixing the parole eligibility date at the ten month mark without a moderation of the head sentence would not sufficiently acknowledge the applicant’s level of cooperation particularly when it must be acknowledged that he could indeed serve the entire period of the head sentence.  I consider that a head sentence of more than two years would indeed be a crushing sentence.

[54] Accordingly in relation to the 13 burglary and stealing counts, the two attempted burglary and one burglary by breaking counts I would convict and sentence the applicant to two years imprisonment.

[55] On the 18 counts of unlawful use of a motor vehicle, the one count of entering a vehicle with intent to commit an indictable offence and the one count of attempted unlawful use of a motor vehicle charge, I would convict and sentence the applicant to eighteen months imprisonment.

[56] With respect to two receiving counts and the four stealing counts I would convict and sentence the applicant to 15 months imprisonment.  On the three summary charges I would convict and sentence the applicant to 12 months imprisonment.  All of those sentences should be served concurrently with each other but cumulatively on the term of imprisonment he is currently serving.  I would also disqualify the applicant from driving absolutely.

[57] The applicant’s full time release date would then be 30 August 2016 and I would then fix a parole eligibility date at 30 June 2015.