Blaker v State of Tasmania
[2005] TASSC 51
•8 June 2005
[2005] TASSC 51
CITATION: Blaker v State of Tasmania [2005] TASSC 51
PARTIES: BLAKER, Derek Wayne
v
STATE OF TASMANIA
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 11/2005
DELIVERED ON: 8 June 2005
DELIVERED AT: Hobart
HEARING DATE: 30 May 2005
JUDGMENT OF: Slicer, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Discrimination between co-offenders – Instigator of crime.
Cranssen v R (1936) 55 CLR 509, referred to.
Aust Dig Criminal Law [837]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: P Sherriff
Solicitors:
Appellant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 51
Number of paragraphs: 23
Serial No 51/2005
File No CCA 11/2005
DEREK WAYNE BLAKER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
BLOW J
TENNENT J
8 June 2005
Order of the Court
Appeal dismissed.
Serial No 51/2005
File No CCA 11/2005
DEREK WAYNE BLAKER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
8 June 2005
I have had the benefit of reading in draft form the reasons for judgment of my colleague Tennent J and agree with both her reasoning and conclusion.
A sentence of 17 months, comparable to that imposed on the co-offenders, might have been justifiable and not subject to review on appeal, but there were differences between the offenders to warrant departure. The commencing point adopted by the learned sentencing judge in dealing with the co-offenders was ameliorated by reason of the prior record of one and the promise of future co-operation by both. The sentence itself does not manifest error and does not show the exercise of discretion to have been unsound, (Cranssen v R (1936) 55 CLR 509).
I would dismiss the appeal.
File No CCA 11/2005
DEREK WAYNE BLAKER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
8 June 2005
I agree that this appeal should be dismissed for the reasons stated by Tennent J.
File No CCA 11/2005
DEREK WAYNE BLAKER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
8 June 2005
On 11 February 2005, the appellant was convicted on his plea of guilty to three counts of burglary, two counts of aggravated burglary and five counts of stealing. He was sentenced to 21 months' imprisonment to commence on 9 February and ordered not to be eligible for parole until he had served 11 months. He has appealed against that sentence on the ground that it was manifestly excessive in all the circumstances.
The facts of the matter were that on 8 November 2002 the owner of an isolated Beauty Point property returned to it after a three week absence and found that the main building and sheds had been broken into. He found that furniture had been removed and a number of safes broken into and guns and ammunition stolen. Three people were ultimately charged with a range of offences, the appellant being one of them.
The appellant had told the accused Purton about the unoccupied premises and suggested Purton go and take furniture from them in the expectation the appellant would be paid for his information. On four separate occasions Purton and the third accused, Singline, did just that. On those occasions they damaged the property to an extent and removed a significant quantity of furniture and firearms. On one of these occasions the appellant went with Purton and Singline and stole some items. On yet another two occasions the appellant went to the property on his own and stole items. This included five shotguns, a rifle and a quantity of ammunition, which he then sold.
In all, property to a value of $47,157 was stolen. Of that, property worth $23,942 has been recovered. After he was apprehended, the appellant co-operated with police and assisted them in the recovery of some of the stolen property. However the guns he personally took were never recovered, as were a number of other firearms. In all, 73 firearms were stolen and only 30 recovered.
The appellant is now aged 44. He was 42 at the time of offending. He was dealt with on three occasions as a teenager for offences of dishonesty and convicted in 1979 of receiving. His record otherwise is predominantly for relatively minor driving and drug offences. In mitigation the Court was told the appellant had four children whom he now sees regularly. He had a difficult childhood and was the victim of sexual abuse as a young man. He had a long history of drug abuse. While he had sought help for both these problems over a number of years, it was only over the last 12 to 18 months that he had got a grip on things.
Shortly before these offences, he became involved in bitter Family Court proceedings relating to his children and restraint order proceedings. He was under stress and one day he and a man he shared a house with drank heavily and decided on a plan which might get them some money. They knew of the complainant's house and decided to tell Purton and Singline about it, thinking they might be interested in the furniture there. He did not know there were also firearms there.
Purton and Singline did indeed go to the property once they had the information and the offending began.
Counsel also told the Court that the appellant had assisted the police in the past in that he had actually given evidence at the trial of a police officer charged with drug offences and had indicated his willingness to give evidence in a murder trial. As a result of that assistance he had fears for his safety were he sentenced to imprisonment.
Since these offences, he had sought drug and alcohol counselling, had spent a number of months at Missiondale and had successfully sought counselling for past sexual abuse. A number of reports were tendered to the Court from the persons the appellant had sought help from in which their authors outlined the appellant's difficulties and the steps he had taken to address them. The appellant also asked to hand up to the Court a personal letter he had written. In that he spoke of being sexually molested by two people, once while in prison. He said he had tried to kill himself over a number of years and had been desperately trying to get help in relation to the sexual abuse. He said he had been on a disability pension for nine years and had a job to go to, although no details were given.
Counsel submitted the appellant just did not consider the consequences of his actions in providing the information about the vacant property and never contemplated stealing the large quantity of firearms.
The Court was told of the sentencing of Purton and Singline, both of whom pleaded guilty to charges arising out of these events. They were each convicted and sentenced to 17 months' imprisonment. The learned sentencing judge said that without regard to an offer to give evidence against the appellant, he would sentence each of them to 21 months' imprisonment.
In the case of Singline, he was 34 and had no history for offences of dishonesty. He was employed, was otherwise found to be of good character and unlikely to re-offend. In recognition of those factors, five months of his sentence was suspended and he was ordered to serve at least half of the balance of his sentence before being eligible for parole. In the case of Purton, he was 35, had some relevant offending history and had been employed most of his life. He had some prospects of rehabilitation. None of his sentence was suspended, but it was ordered he not be eligible for parole until he had served half of his sentence.
As to the appellant, the learned sentencing judge said he was aware of an empty house and, wanting money, instigated two others to break into the house and sheds and steal property. The appellant disposed of some of the property those men stole. He also went to the property with the men and stole other items, and went alone as well and stole more, including firearms. He noted as aggravating that a large quantity of firearms and ammunition had been stolen and that they had been distributed amongst a number of persons. He also noted the appellant had helped recover some items, but much of the stolen property had not been recovered.
The learned sentencing judge had regard to the age of the appellant, his offending history, that he had previously served short periods of imprisonment and well knew the risk he ran. While he did not outline any detail, the learned judge also said he had regard to the various reports and letters provided to him. He then noted the crimes were bad ones and that imprisonment was the only appropriate punishment.
At the hearing of his appeal, the appellant, who was unrepresented, provided extensive written submissions and spoke to those. It is perhaps unfortunate that he did not appear to appreciate that this Court is bound to consider only what was put before the sentencing judge, and much of his material was not in that category. He also did not seem to understand that he pleaded guilty to the charges on the indictment. He could not now ask an appeal court to take into consideration his argument that he was not in fact guilty and that he pleaded guilty for his own reasons. He also did not appear to understand the basis upon which he was charged with the offences he was, apparently believing that because he did not actually take part in all the entries by Purton and Singline into the Beauty Point premises that he was somehow less culpable.
In an appeal such as the present on the ground that the sentence was manifestly excessive, the Court must recognise that a sentencing officer has a very wide discretion. It is not for an appellate court to substitute its own opinion simply because it may not have imposed precisely the same sentence. The Court must be persuaded the sentence was manifestly excessive, that is that there was a patent error and the sentence could not be explained in any way other than the sentencing judge erred in some way.
In this case the sentencing judge clearly took the view the appellant's culpability as the instigator of the offences was higher than that of the other accused on the basis that the offences would not have occurred otherwise. He was entitled to do so. He was also mindful of the large quantity of firearms stolen and not recovered. While the appellant may not have initially known of the existence of those firearms he certainly took advantage of it, once he did know, in selling them for drugs. His Honour also had regard to parity of sentence with that imposed on the co-accused.
I am not, in all the circumstances, persuaded that the sentence imposed was so manifestly excessive as to warrant intervention by this Court.
Accordingly I would dismiss the appeal.
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