Brakey v the Queen
[1987] TASSC 16
•13 February 1987
TASSC A2/1987
CITATION: Brakey v The Queen TASSC A2/1987
PARTIES: BRAKEY, L B
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 75/1986
DELIVERED ON: 13 February 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Green CJ, Nettlefold and Underwood JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A2/1987
Number of paragraphs: 36
Serial No A2/1987
File No CCA 75/1986
L B BRAKEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
NETTLEFOLD J (dissenting)
UNDERWOOD J
13 February 1987
Orders of the Court:
Application for leave to appeal granted.
Appeal allowed.
Sentences quashed and upon each indictment a sentence of 18 months imprisonment commencing on 3 May 1986 substituted therefor.
Serial No A2/1987
File No CCA 75/1986
L B BRAKEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
13 February 1987
1 This is an application for leave to appeal against sentences of imprisonment imposed upon the applicant’s plea of guilty to three counts of burglary and three associated counts of stealing, one count of attempted burglary and one count of receiving stolen property. The facts were as follows.
2 On 10 December 1985 the applicant gained entry to a hairdressing salon by using a jemmy to force open a door. On that and on a subsequent occasion on the same night when he returned and re–entered the building he stole a cash register, $20 in cash and other goods to a total value of $1,772. The cash register and the goods were later recovered, but the cash register was beyond repair and the goods were unsaleable. On 29 January 1986 the applicant attempted to enter an unoccupied dwelling with intent to steal, but abandoned the attempt when he was disturbed. The next night he entered the same dwelling and stole property valued at about $190. All the property was later recovered. The count of stealing stolen property arose out of the applicant’s possession of a video recorder valued at about $900 which the applicant purchased for $180 knowing it had been stolen.
3 The applicant was 41 years of age. He had been convicted of similar crimes on four occasions in 1978, 1984 and 1985. The applicant was under the influence of alcohol when he committed the crimes, but otherwise the circumstances surrounding the commission of the crimes were unremarkable having neither any especially mitigating or aggravating aspects.
4 On 4 July 1986 the learned trial judge sentenced the applicant to 12 months imprisonment in respect of each of the crimes committed on 10 December 1985, 3 months imprisonment in respect of the attempted burglary, 6 months imprisonment in respect of the crimes committed on 30 January 1986 and 6 months imprisonment in respect of the crime of receiving stolen property. Each sentence or group of sentences was ordered to be served cumulatively, so that the total effective sentence passed upon the applicant was 27 months imprisonment. The learned trial judge made no order as to when the first of the sentences was to commence and thus, by virtue of s391(2) of the Criminal Code, it commenced on 4 July 1986. The applicant had been in custody from 18 February 1986 to 27 February 1986 and from 12 May 1986 until he was sentenced, so that the total effective period of imprisonment which he was liable to serve was about 2 years and 5 months.
5 I have considered the sentences which are usually imposed in respect of crimes of this kind and have come to the conclusion that, considered in isolation, the sentences which were imposed by the learned trial judge were at the upper end of, but within the range of the sentences which would have been appropriate in each case. However, although a trial judge is entitled to impose a separate sentence in respect of each crime, it has long been established in this Court that when he does so he is required to have regard to the overall or total effect of the sentences which he is imposing. With respect, I have come to the conclusion that in this case the learned trial judge gave no or insufficient weight to what is sometimes described as the totality principle and that as a consequence the sentences which he imposed, particularly when considered in conjunction with the periods which the applicant had already spent in custody when he was sentenced, were manifestly excessive.
6 I would grant the application for leave to appeal, allow the appeal, quash the sentences and upon each indictment order that a sentence of 18 months imprisonment to commence on 3 May 1986 be substituted therefor.
Serial No A2/1987
File No CCA 75/1986
BRAKEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
13 February 1987
7 The applicant appeared before my learned brother Wright J charged with the crimes alleged in two indictments filed the 17 June 1986. He pleaded guilty to all the charges.
8 One indictment contained two counts of burglary, two counts of stealing and one receiving stolen property. The facts relevant to that indictment were that on 18 February last police officers searched a house at Rokeby. A Philips video recorder was recovered in the course of the search and also a quantity of hair care products. It was ascertained that the video recorder had been stolen from a house at Sandford. It had a value of $900 approximately. The hair care products had been stolen from a hairdressing salon known as “Zac’s Place”, 76 Riawena Road, Montagu Bay, on or about 10 December 1985. The total value of the property stolen from those premises amounted to $1,772.32.
9 As to the hair care products the applicant admitted to police officers at interview that he had broken into “Zac’s Place” and stolen that property and a plastic garbage bin. The applicant admitted that he jemmied those premises with an old tyre lever which, at the time of interview, was “in the drink” The applicant also admitted that he also stole from the shop some coins of a small total value and a cash register. Asked what he did with the cash register he said “Threw that in the drink too, too heavy”. In the course of stealing the property from “Zac’s Place” the applicant made two separate entries to the premises. Hence, in respect of his attack on “Zac’s Place”, technically, he committed two burglaries, stealing some property on each occasion. Consequently, the indictment correctly characterised his conduct as amounting to two separate burglaries and two separate acts of stealing. However, his Honour treated the matter for the purpose of sentencing as a single transaction.
10 The applicant admitted to police at interview that the video recorder was bought by him in an hotel for $180. Asked “When you brought [sic] it what did you believe in your own mind was a normal price for it”:
“A Three ninety nine or four ninety nine”.
…
QWhen you brought [sic] the video did you believe that it may have been stolen?
A Yeh, well it had to be at that price.“
11 The goods which the police recovered and which were from “Zac’s Place” were not suitable for later sale. The cash register was recovered from the water but it was beyond repair.
12 The other indictment contained one count of attempting to commit burglary, one count of burglary and one count of stealing. The facts were that the occupants of the home at 28 Bingley Street in Howrah left their home on 25 January 1986 to travel to Ulverstone and made arrangements with neighbours to keep an eye on the premises. On 29 January the neighbours noticed that an attempt had been made to enter the house. The police were notified and on 30 January a police officer was walking through the courtyard of the premises when he saw the curtains in a room fling back. The officer recognised the applicant standing at the window. The applicant fled by way of the rear door. The police officer checked the house and found that the glass panel in the back door had been broken and the door was open. The officer entered the house and noted property in the hallway and that drawers and cupboards throughout the house had been disturbed. In due course the applicant was discovered in the neighbourhood.
13 The applicant was taken to the Bellerive Police Station and there interviewed. He admitted the crimes alleged in this indictment. The interview is a cause for concern because it suggests a conclusion not inconsistent with his record, namely that he has graduated from the novice into the advanced class as a thief. The following are the relevant passages:
“Q Why did you go to this house?
A Looking for money and whatever else was there I could carry away.
Q How did you get into the house?
A I busted the glass in the back door and opened the door.
Q Did you spray anything on the glass before you broke it?
A Yeh.
QI want you to have a look at this can of spray (shown spray). Is this the can of liquid you sprayed on the glass.
A Yes.
Q Why did you do that?
AUp here mate for thinkin’ (pointing to head). You know cold glass and heat together makes it easier to break and less noise, I‘m getting more professional these days, you’ve got to keep up with the times.
Q Did you use a glass cutter to break the glass in this back door?
A Yeh mate.
QI want you to have a look at this glass cutter (shown glass cutter with red and black handle). Is this the glass cutter you used.
A Yeh.
QDo you agree that this glass cutter was recovered by police from your back pocket?
A Yeh.
…
QAlso found at the rear of the house near the back door was this blue bag (shown bag). Is this your bag?
A Yeh.
Q Why did you have this bag with you?
A Carry the stuff away, what do you reckon.
Q What were you doing in this area tonight?
AHaving a peep through the windows, there‘s one beauty down there, she runs around the house in the nude all the time, she’s a little ripper.
QWhen you broke into this house earlier this morning did you believe that the people were away?
AI reckon I was down there Wednesday night and no–one was home there. I knew it was a trap. I knew you blokes would be there tonight.
Q What makes you say that?
A Well I tried to get into the bloody place Wednesday night.
…
Q What were you doing in the area Wednesday night?
AAs I have said before I was having a peep on that little lovely that runs around the house with nothin’ on.
Q Why did you try to get into the house on Wednesday night?
AI didn’t see anyone about there mate so I thought here goes I’ll see if I can get in.
Q What did you want to get in for?
A The same reason as tonight mate, money.
QWhat instrument did you have with you last Wednesday night as when I visited there tonight I saw jemmy marks on the back and front door?
A A screwdriver mate.
Q Where is the screwdriver now?
A Threw it away in the bush.
Q Was there anybody with you on Wednesday night or tonight?
ANo, but there was a bloody joker on my Territory Wednesday night. I threw a couple of hunks of wood at him. I’ll tell you what he sounded like a bloody elephant runnin’ away when I threw the wood.
Q What do you mean by the other person was on your territory?
A He was havin’ a peep the same as me, that’s why I never went in Wednesday.
QAre you saying that you would have got into the house on Wednesday if this other person had not been there?
A Yeh, the bloody noise he made I thought I’d better git.”
14 The property stolen on this occasion consisted of jewellery, a clock radio and other small items. The total value of the property taken was $1,910.
15 The applicant‘s prior conviction sheets were before the learned sentencing judge and disclosed a number of very relevant entries, namely, the following:
“10.10.78 Burglary (9 charges) 3 years’ imprisonment
Stealing (9 charges) to date from 23.8.78
Attempted burglary6.7.83 Peer into dwelling 14 days’ imprisonment
house (6 charges) wholly suspended on
conditions31.10.84 Burglary (2 charges) 1 month’s imprisonment
Stealing (2 charges) on each charge cuml
with each other wholly
suspended on condition
the def is of good
behaviour – commit no
offence of dishonesty for
a period of 3 years.15.7.85 Burglary (6285) 6 work orders. Probation
order 12 months under
supervision.4.9.85 Breach suspended Original order of 4
sentence imposed months put into execution
31.10.84 with the last 3 months
suspended on condition
that he be of good
behaviour and not commit
any offence involving
dishonesty within 12
months of his release.25.9.85 Burglary Three months‘ imprison–
Stealing ment on each charge to
(29685) run consecutively. Four
months’ suspended on
condition that he commit
no offence of dishonesty
for 12 months.“
16 A plea in mitigation was put to the learned sentencing judge. The main points were the following:
(1)The items stolen from the house in fact did not leave the house as he was disturbed before their removal.
(2)Owing to the considerable quantity of alcohol he had consumed at the time he received the video recorder, he thought the price asked for it was reasonable. But on sobering up he realised it could have been stolen.
(3)There was an attempt to disown the answer about getting more “professional”. Counsel submitted “My instructions are that that is not an accurate record of what the accused said in respect of the answer to the question ‘why did you do this?’ and he allegedly said ‘Up here mate for thinking‘. He was talking about use of the spray and it is referred [sic] that he is getting more professional these days. Sir, my instructions are that that is not an accurate account.”
His Honour asked counsel to clarify the matter. Counsel checked his instructions and addressed his Honour as follows:
“Specifically, your Honour, he concedes he made the answer saying – relating to the fact of cold glass and heat together make it easier to break the glass, he doesn’t – well he does dispute ‘I’m getting more professional these days, you’ve got to keep up with the times’. That’s the particular item he says is an inaccurate record of what was said.”
(4) The accused had been in custody since 12 May 1986 in relation to these matters.
(5)The accused was 31 years. At the time he was taken into custody he was employed as a general hand in an orchard.
(6)The accused was severely affected by alcohol at the time of the crimes committed against “Zac’s Place”. “He was walking past the hairdresser’s (ie Zac’s Place) after leaving the hotel and on an impulse, being severely affected by alcohol, he decided to break in. My instructions are there was a tyre lever he located nearby which reinforced his intention to break in – that allied with the alcohol he was unable to resist the temptation and he did indeed break in.”
(7)On 29 January the accused had again been drinking. He had the bag with him because he had taken some bottles to the house of a friend in that bag. He resisted the temptation to break in “probably because he wasn’t drunk enough”. However, on the next night his alcohol consumption had been more advanced and he fell victim to temptation.
(8)The prior convictions for offences of dishonesty relate to acts done when he had been drinking.
(9) The history of the accused was outlined.
(10)Recently the accused had been off the drink having formed a stable relationship with a young lady.
(11)There were positive and promising signs for the future of the accused reinforced by the steady relationship with the young lady.
17 His Honour imposed the following sentences:–
(1)For the crimes in respect of “Zac’s Place”, 12 months imprisonment.
(2) On the charge of receiving the video recorder, six months imprisonment cumulative.
(3) Attempted burglary of the house, three months imprisonment cumulative.
(4) Burglary and stealing from the house, six months imprisonment cumulative.
18 His Honour was entitled to take the view that the public was entitled to demand protection from this man for a long period. It was no routine sentencing matter which his Honour had. He was entitled to take the view that there were a number of aggravating features about the case. They were:
(1)“Zac’s Place” was attacked when the accused was armed with a tyre lever which he used as a jemmy. On all the facts of the case his Honour was entitled to reject the proposition that that tyre lever was found near the premises and then he decided to break in. On all the evidence in the case, that suggestion is frankly fatuous.
(2)I take judicial notice from the state of the lists in my court that video cassette recorders are stolen very frequently. That is because there is a ready market for them. There is a need to deter that crime. Receiving stolen video cassette recorders encourages the commission of the crime of stealing those items, a prevalent crime, and takes on greater significance accordingly.
(3)The attack on the house on 29 January 1986 produced jemmy marks (compare the attack on Zac’s Place).
(4)On 30 January 1986 he sprayed the glass in the back door of the house in order to lessen the noise of entry. It is unlikely that that is the act of a novice. Obviously, he had the spray with him when making entry. He also used glass cutters which the police found in his pocket. On all the evidence, the conclusion is that he had the bag with him to carry property away. He was there with instruments and gear for housebreaking.
(5)On all the evidence the suggestion that these crimes were the spur of the moment lapses of an inoffensive drunk is nonsense. The proper conclusion is that the crimes are the work of a man who is a danger to society.
19 If his Honour had imposed a total sentence significantly less than the one he did impose he would have been in breach of his duty to the public. If the case had come into my list the total sentence would have been a little higher. I would have taken a more serious view of the repeated attacks on the house of Mr. and Mrs. Wells. The first attack was with an instrument used as a jemmy (compare the attack on “Zac’s Place”) and the second attack, the very next night, on all the evidence should have been seen as a criminal tradesman‘s “bust”.
20 The application does not have any merit. It should be dismissed.
Serial No A2/1987
File No CCA 75/1986
L B BRAKEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
13 February 1987
21 The appellant was sentenced as follows:
Burglary (2)) 12 months
Stealing (2) )Receiving 6 months
Attempted Burglary 3 months
Burglary) 6 months
Stealing )
22 All sentences were ordered to be served cumulatively so that the total period of imprisonment ordered was 2 years 3 months.
23 Before sentence was imposed the appellant spent a period of eight weeks and six days in custody with respect to the offences. The sentence was not backdated so that the effective custodial order in respect of all crimes was just short of two and a half (2½) years. The appellant seeks leave to appeal against the total sentence upon three grounds which all amount to the single contention that the sentences are manifestly excessive.
24 On 10 December 1985 the appellant broke into a hairdressing salon and stole a quantity of hair care products. The stolen property was carried away in plastic bags. Shortly after on the same evening, the accused returned to the salon, re–entered and stole a cash register and $20 in cash. In respect of these crimes he was sentenced to twelve months imprisonment.
25 On 29 January 1986 the accused attempted to break into an unoccupied dwelling house but desisted upon hearing someone in the vicinity. A sentence of three months imprisonment was imposed for this crime.
26 The following night, the appellant returned to the same house, entered by force and gathered together some jewellery and some household items, valued at $190, preparatory to removing them from the house. Before he had time to leave the house he was seen by a police officer and subsequently apprehended. For these offences a total of six months imprisonment was imposed.
27 On 18 February 1986 the appellant’s home was searched and a stolen video cassette recorder located. The appellant said he bought it from some strangers in a hotel. He claimed to have been affected by alcohol at the time of the purchase and did not immediately appreciate that the property was stolen. However, shortly after the purchase he realised that the purchase price was so far below value it must have been stolen. He was sentenced to six months’ imprisonment for this offence.
28 The accused, aged 31 years, has a number of prior convictions for burglary and stealing. On the 10 October 1978 he was sentenced to three years imprisonment on nine counts of burglary and nine counts of stealing. On 31 October 1984 he was sentenced to a total of four months imprisonment on two counts of burglary and two counts of stealing. The whole of these sentences were suspended upon condition he commit no offence of dishonesty for three years. However, on 15 July 1985 he was again convicted of one count of burglary. With respect to this conviction he was sentenced to six work orders. By reason of this offence he was put up for a breech of the suspended sentence imposed on 31 October 1984. The original sentence was ordered to be put into effect but the last three months suspended upon condition he be of good behaviour and not commit any offence of dishonesty within twelve months from the date of his release from prison. On 29 September 1985 he was again convicted of burglary and stealing and sentenced to a total of six months imprisonment, the last four of which were suspended upon condition he commit no offence of dishonesty for twelve months.
29 The appellant can be fairly described as a persistent offender who has not availed himself of more than one opportunity offered by way of suspension of sentence, to reform.
30 With respect to the commission of the crimes themselves the learned trial judge was told that all offences were committed after the accused had consumed an excessive quantity of alcohol.
31 In short, it can be said that there is nothing in the circumstances of the offences or the offender to mitigate the appropriate penalty for each of the crimes. In my view it can also be said that viewed individually, none of the sentences are manifestly excessive although each are clearly at the upper end of the range of sentences for crimes of a similar nature.
32 However, regard must be had to the “totality principle” and in this case, the period of eight weeks and six days in custody prior to the imposition of sentence.
33 D A Thomas in The Principles of Sentencing, 2nd ed at 56 states:
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.”
34 In his comments upon passing sentence the learned sentencing judge made reference to the appellant’s previous convictions and said:
“In my view in the circumstances, immediate custodial sentences are appropriate in respect of the current indictments and in fixing these sentences I want to make it clear that I have given full credit for the fact that you have not contested these charges and have, in fact, entered pleas of guilty. If it were not for that the sentences would be higher”.
His Honour made no express reference to the overall effect of the several sentences he had imposed. The question which requires consideration is whether the whole of the custodial order together with the pre–sentence period of eight weeks and six days is out of proportion to the totality of the appellant‘s criminal behaviour. See Abbott v Lowe, Cox J A27/1986.
35 In my opinion the total period of just under two and a half (2½) years is manifestly excessive having regard to the totality of the criminal behaviour of the appellant. I take into account:
(1)The two crimes of burglary and stealing from the hairdressing salon were, as the learned sentencing judge acknowledged, in effect, a single criminal escapade.
(2)The attempted burglary resulted in no damage to the property and could properly be regarded as part of the criminal conduct the following night which resulted in the convictions for burglary and stealing.
(3)The total value of the property stolen did not exceed $3,000 and it would appear a considerable proportion of it was recovered.
(4)Although all crimes of burglary and stealing are serious, those committed by the appellant could not be regarded as the most serious in this category of offences.
36 In my judgment leave to appeal should be granted and the sentences set aside. In lieu thereof I would impose sentences of eighteen months on each indictment and direct that they take effect from such date prior to the date sentence was imposed as will take into account the pre–sentence period in custody.
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