R v Taylor[2015] QCA 214

COURT OF APPEAL

HOLMES CJ

GOTTERSON JA

APPLEGARTH J

CA No 148 of 2015

DC No 900 of 2015

DC No 1045 of 2015

DC No 2941 of 2009

THE QUEEN

v

TAYLOR, IainApplicant

BRISBANE

MONDAY, 2 NOVEMBER 2015

JUDGMENT

HOLMES CJ:  The applicant pleaded guilty to three counts of entering premises with the intent to commit an indictable offence, six counts of breaking and entering and stealing, one count of attempted stealing, one count of stealing, two counts of receiving tainted property and one count of possessing things used in connection with unlawful entry.  He was sentenced to 12 months’ imprisonment on the counts of attempted stealing, stealing, receiving tainted property and possessing things used in connection with unlawful entry and four years’ imprisonment on the remaining burglary charges. At the same time he was ordered to serve a suspended two year sentence of imprisonment which he had breached.

The first in time of the offences involved the applicant breaking a padlock, using an oxyacetylene torch to remove some security bars and breaking louvres in order to gain access to a business which sold coffee machines and then stealing 20 machines valued at almost $30,000.  That occurred at the end of 2006.  The applicant was apprehended in respect of those offences in 2009.

In August 2007, the applicant and a friend were prevented from driving away with a refrigerator they had stolen from outside a store.  That was the attempted stealing.  A month later they stole two GPS systems from yet another shop.  In December 2011, the applicant jemmied open a lock at yet another business and smashed a window to gain entry, but after searching the inside of the premises apparently failed to find anything to take.  In early 2012, police searching a car associated with the applicant found two gas bottles which had been recently stolen from a business and a bag containing a crowbar, masks, screwdrivers and gloves.  Police also searched a storage facility which the applicant rented and found a cheque book which had been stolen in April 2009.

In April 2013, the applicant smashed glass in order to enter a shop where he stole $850.  In December 2013 he committed a series of similar offences, smashing glass doors or windows to break into four adjoining shops, breaking open safes and cash registers to steal cash in respect of amounts of $700, $700 and $1,000.  From the fourth shop he was unsuccessful in obtaining any cash.  In January 2014, a similar effort, which entailed breaking a locked glass door to get into a café and trying to open the safe triggered security alarms, resulting in the applicant’s arrest with $644 in stolen cash: he made admissions to that offence.  In respect of other offences, he was either captured on CCTV footage or left DNA at the scene, generally because he had cut himself.

The applicant was born in 1952.  His criminal history as an adult began in 1970 with, thereafter, a large number of burglaries, stealing and receiving offences up until 1979 when he was sentenced to eight months’ imprisonment, with an interval in 1978 when he was committing similar offences in South Australia and was also convicted of possessing morphine and methadone.   His criminal history in New South Wales began in 1984 with sentences of imprisonment imposed for break, enter and steal and goods in custody charges on some 17 occasions between then and 2013.  Some of the delay in having the present matters dealt with is attributable to his serving sentences of imprisonment in New South Wales.

The applicant continued to commit offences in Queensland from time to time, including an array of property offences for which he was sentenced to imprisonment for two years and six months in 2001 and two burglary counts for which in 2006 he was sentenced to two years wholly suspended, that being the sentence activated by the sentencing judge in the present case.  His counsel, in making submissions on the sentence which is the subject of the present application, said that he had a long-term addiction to heroin, which is unsurprising.  In his favour, she pointed out that his offending was unsophisticated and always involved commercial premises rather than residences.  He was without family support.

The sentencing judge noted the applicant’s long history of offences of dishonesty while accepting that drug addiction had contributed to his position.  His Honour took into account time spent in custody in New South Wales for offences committed over the same period, which included periods of imprisonment of 14 months and six months.  Having found the applicant in breach of the 2006 suspended sentence he ordered him to serve the entirety of the two years, but ordered that that sentence, as with all the others, be served concurrently.  A period of 515 days in presentence custody was declared as time served.

His Honour, who was sentencing on 11 June 2015, fixed a parole eligibility date of 12 July 2015, which entailed 18 months in custody before eligibility.  The applicant seeks leave to appeal on the ground of two alleged errors in the exercise of sentencing discretion.  The first is what he says was the sentencing judge’s failure to give a proper discount for an early guilty plea and the second the setting of a parole eligibility date which could not be met because it was only a month from the sentencing date.

As to the first matter, it is the case that the sentencing judge did not expressly refer to taking into account the plea of guilty.  It is evident, however, from the fact that a parole eligibility date was set after 18 months of a four year sentence – that is two months after the one-third mark – that his Honour did, in fact, make allowance for the guilty plea.

The applicant’s submissions here primarily turned on the second issue; that is, the setting of a parole date one month from the sentence.  In that regard, he relies on three cases which turned on this court’s conclusion that there had been factual error affecting the approach to setting parole eligibility.  His point is that the process of making an application for him entailed having necessary assessments performed and the application considered, all of which would take far longer than the month that the sentencing judge allowed before a date for parole eligibility.

The first of the three cases relied on was R v Ronkovich [2007] QCA 193, in which this Court accepted that there was factual error in that the sentencing judge had been under the mistaken impression that the applicant could reasonably be considered for parole as at the relevant date, not appreciating that because of the unavailability of sexual offender courses he would not be able to complete the courses as the authorities required of him before he could be considered for parole.  The second was R v Daly [2004] QCA 385, in which the sentencing judge had articulated an expectation that his parole recommendation would take effect at the time indicated, not appreciating the administrative delay that would be involved, with the result that his express intentions in sentencing had been thwarted.  In those cases, the Court concluded that the mistake meant the appeal should be allowed and the relevant sentence varied.

The third case was R v Mackenzie [2002] 1 Qd R 410, in which this Court acknowledged its own error of fact arising out of the peculiarities of the applicant’s security classification within the prison system and its implications for parole and reopened the sentence pursuant to s 188 of the Penalties and Sentences Act 1992.  Those cases turn on their facts and do not assist here.

Firstly, there is no barrier evident to the applicant seeking parole apart from the fact that this application for leave to appeal must be dealt with.  The applicant equates the eligibility date with the date on which his application will be considered.  In fact, it is the date from which it is capable of being considered.  Secondly, it is plain that the sentencing judge considered that the applicant required supervision if he were to be released and determined that parole, with the necessary assessments undertaken, was the appropriate means of doing so.  There is no reason to suppose that he was under any misapprehension about the applicant’s prospects or the difficulties that he might face in having the application heard promptly, let alone in achieving parole.

I do not consider that the setting of the parole eligibility date a month after sentence is indicative of any factual error by the sentencing judge or that there is any evidence that his Honour was under any misapprehension about the necessary administrative processes which would have to be gone through.  I would refuse the application for leave to appeal against sentence.

GOTTERSON JA:  I agree.

APPLEGARTH J:  I agree.

HOLMES CJ:  The application for leave to appeal against sentence is refused.