Graham v The Queen

[2001] TASSC 125

[2001] TASSC 125

CITATION:              Graham v R [2001] TASSC 125

PARTIES:  GRAHAM, Ricky Aaron
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 31/2001
DELIVERED ON:  2 November 2001
DELIVERED AT:  Hobart
HEARING DATE:  2 November 2001
JUDGMENT OF:  Cox CJ, Slicer J, Evans J

Edited edition of Reasons for Judgment given orally

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicant:  Applicant in person
           Respondent:  J Ransom
Solicitors:
           Applicant:  Applicant in person
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [2001] TASSC 125
Number of paragraphs:  5

Serial No 125/2001
File No CCA 31/2001

RICKY AARON GRAHAM v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

(DELIVERED ORALLY)  COX CJ

SLICER J
EVANS J
2 November 2001

Order of the Court:

Appeal dismissed.

Serial No 125/2001
File No CCA 31/2001

RICKY AARON GRAHAM v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

(DELIVERED ORALLY)  COX CJ

SLICER J
EVANS J
2 November 2001

1. The applicant was convicted after trial on one count of burglary and one of stealing from commercial premises in Launceston.  The premises were a jeweller's shop and goods to a value in excess of $3,000 were found upon him shortly thereafter and identified as having come from these premises.  He was 22 years of age at the time, he had committed numerous prior offences while subject to the jurisdiction of the Children's Court and had, at the age of approximately 17, committed a series of serious crimes which brought upon him a sentence of eight years' imprisonment.  In addition, he committed the offence of escape and had been given a cumulative sentence of three months in respect of that crime.

1. On 28 August 2000, he was released on parole in respect of those charges for a period of three years and five months.  Less than two months later, he committed these crimes.  The learned judge passing sentence had no option in the absence of special circumstances but to impose a sentence which was cumulative upon the unexpired portion of the sentences on which he had been granted parole.  This is in accordance with the Corrections Act 1997, s76. He was aware that the applicant still had three years five months from the date of the revocation of his parole on 23 October 2000 which were still to be served. Conscious of this, he said that he intended to apply the totality principle. In our view, a sentence of two years would have been quite appropriate. The applicant was 22 years of age, as I have said, and a prior offender. He was not entitled to the leniency often accorded a youthful or first offender. He had elected trial and was not entitled therefore to any discount for a plea of guilty. The amount of property taken was relatively large and the premises commercial, and he had offended again within a short time of his release on parole. A sentence of eighteen months gave adequate recognition to the totality principle and we are satisfied that his Honour gave due regard to that principle.

1. The applicant claims that the learned sentencing judge was wrongly told by his own counsel that his problems stemmed from alcohol and drug abuse and that the judge wrongly took that into account.  The comment was, in our view, relevant to his general conduct, including his behaviour which had brought about the eight year sentence.  It was not an untrue comment and even on the applicant's own account of his behaviour on the night he committed these particular crimes, he had been abusing alcohol and was very drunk.  The learned sentencing judge did not, in fact, advert to the applicant's abuse of either substance in the course of his comments on passing sentence and there is no basis for the view that he took it into account in any way which was adverse to the applicant.

1. The applicant also complains that inadequate attention was given to the time he would be eligible for parole.  This is really an irrelevancy.  The law requires that parole be considered by the Parole Board.  It was granted in respect to his earlier sentences and was revoked for breach, thereby putting an end to any entitlement to apply for parole in respect thereof, although we note that the Board has power under s82 to reconsider releasing him on parole, notwithstanding the prior revocation of parole and so he remains entitled to apply for parole in respect of his current sentence when he has completed half of it. 

1. We can detect no error in the sentence handed down and accordingly the application is dismissed.