Guyder and Bauman v Shipman

[1995] QCA 153

IN THE COURT OF APPEAL	[1995] QCA 153
SUPREME COURT OF QUEENSLAND

C.A. No. 491 of 1994

Brisbane

[Guyder v. Shipman]

BETWEEN:

G. L.GUYDER and

G.J. BAUMAN

Respondents

AND:

BRADLEY SCOTT SHIPMAN

Applicant

Macrossan CJ
Thomas J

White J

Judgment delivered 28/04/1995

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS: CRIMINAL LAW - SENTENCE - Offences of stealing, housebreaking and unlawful use of motor vehicle - whether applicant was unduly harshly treated because dealt with by two different magistrates, the second magistrate imposing a penalty cumulative on that imposed by the first - totality of criminality.

Counsel: 

Mr S. Lewis for the applicant.

Mr D. Meredith for the respondents.

Solicitors: 

Legal Aid Office (Queensland) for the applicant.

Director of Public Prosecutions (Queensland) for the respondents.

Hearing Date: 22/02/1995
Judgment delivered 28/04/1995

REASONS FOR JUDGMENT - THE COURT

The matter remaining for the Court's consideration in this case is the application for leave

The applicant is a young man and he pleaded guilty to the offences with which we are
concerned. However, it has to be borne in mind that he had a substantial criminal history and
these present offences are both numerous and serious.
There were seven offences all charged as having occurred in July 1994 on various dates
between 19 July and 30 July. Four offences were of stealing, one was of housebreaking, and two
were of unlawful use of motor vehicles. The applicant was on parole at the time as a result of
prior convictions. Custodial terms of varying lengths were imposed for these offences on 31
October 1994, the shortest being one month and the longest twenty-four months which was for
one of the unlawful use offences. All the terms were concurrent amongst themselves, and in the
case of the two year term it was specifically ordered that it should commence at the expiration of
a 12 months sentence which had been imposed at Goondiwindi on 3 August 1994. An
accompanying order, described as a fresh recommendation for parole consideration under
s.157(3) of the Penalties and Sentences Act, was made for twelve months from the date of
sentence, that is from 31 October 1994. An order for disqualification from holding or obtaining a
driver's licence for three years was also imposed but no question presently arises concerning that
matter.
It is accepted that the maximum sentence which could have been imposed on summary
conviction for any of these offences was a two year term. Presumably this concession was made
having in mind the various provisions contained in ss.443 and 408B of the Code. In this case
then the statutory maximum was imposed, and it was made cumulative on the terms that had
been imposed previously in the Magistrates' Court at Goondiwindi on 3 August 1994. On that
date various sentences were imposed including one of twelve months imprisonment again
cumulative on an even earlier term of imprisonment of six months imposed on 27 April 1994 for
a number of offences including offences of stealing and unlawful use of a motor vehicle.

to appeal against sentence. the applicant was sentenced to a term of two years to run from a date which can be calculated to be about October 1995 and this will be equivalent to a term of about three years running from October 1994 when the sentences were actually imposed. A single concurrent three year term could not, of course, have been imposed since it would have exceeded the statutory maximum.

The earlier sentences imposed at Goondiwindi on 3 August 1994 may, helpfully, be particularised. Those were five offences all described as taking place at Yelarbon either on 31 July 1994 or on or about that date. Broadly, it can accordingly be said that those offences took place after the group of offences with which we are concerned, although they were in fact dealt with before. Included amongst the five were offences of stealing, breaking entering and stealing, breaking and entering with intent, and assault. As already mentioned the effective head sentence was twelve months cumulative on a prior term of six months imprisonment imposed on 27 April 1994. A recommendation for parole was ordered after the cumulative term in question had run for six months. All of the sentences imposed on 3 August 1994 as amongst themselves were made concurrent.

The offences with which we are concerned happened to be dealt with at Brisbane Magistrates' Court almost three months after the Goondiwindi sentences were imposed. Although the applicant pleaded guilty at both Goondiwindi and Brisbane to all of the offences involved, he was not, as it happened, offered an opportunity to have them dealt with together. The complaint that is now made is that excessive custodial terms were, in the result, imposed upon him and in particular that the two year term imposed on 31 October 1994 should not have been made cumulative upon the terms ordered previously. However, with due respect to this submission, the real question is whether the sentences imposed in all the circumstances, including the nature of the offences themselves, the applicant's youth, his criminal history and the fact that all of the offences occurred in the course of a virtually continuous and unbridled episode of lawlessness throughout the second half of July 1994, should be regarded as out of proportion to the totality of the criminality involved.

The possibility that the applicant may have been unduly harshly treated because he was dealt with by two different magistrates with a cumulative penalty imposed by the one who dealt with him subsequently, should not be overlooked, but it is the totality principle which is of the greatest importance for the resolution of this appeal. It would not have been beyond power for a single magistrate, had he dealt with all of the offences together, to have selected one or more to carry a cumulative penalty. Equally, in this respect it should not be regarded as beyond the power of the second sentencing magistrate to have proceeded in the fashion that he did. However, it is true that concurrent sentences of appropriate length may have been a more conventional approach to the task of sentencing for a brief but prolific period of criminal activity on the assumption that sentences of appropriate length were available for selection. The offences in question were both numerous and different in kind and, it is likely that the applicant's very persistence in offending induced the second sentencing magistrate to decide upon a cumulative penalty. The second magistrate could, of course, have declined to deal with the matters summarily notwithstanding the election of the applicant to have him proceed in that fashion. The magistrate may have chosen to exercise a discretion to send the matters to the District Court for sentence: cf. R v. Tommekand C.A. No. 233 of 1994, 21/12/94.

When counsel for the applicant announced to this Court that he did not wish to contest the head sentence term of two years but desired to challenge only the order that it be imposed cumulatively, he was really being unjustifiably selective in his choice of target. The real question is whether the effective term that was imposed was excessive in view of the overall criminality with which the magistrate had to deal. This question should now be examined more closely.

The applicant's criminal history was extensive. He was dealt with by the courts for offences on some thirty occasions commencing in 1987 when he was placed under care and control. The offences involved were particularly numerous as on a number of occasions there were multiple charges involved. Frequent offences of dishonesty appear in the record and unlawful use of motor vehicles also. As an adult, a custodial term was first imposed in November of 1990, this being for a breach of the Bail Act and the first substantial custodial term was imposed in February of 1991 when, for unlawful use of motor vehicles, he was sentenced to imprisonment for one year. Other custodial terms followed because of his repeated offending. The two batches of offences committed in July of 1994 included stealing a policeman's jacket directly from a police car detected through the use of a security camera, and breaking entering and stealing from a police station. When first apprehended in connection with the July offences, the applicant refused to make admissions and made a number of denials providing false accounts and making ugly threats against police officers. He also assaulted police officers while being transported in a vehicle to Goondiwindi to be dealt with by the court there. This he did by spitting and attempting to spit at the escorting officers. He also informed them that he hated the police. Although in the end the applicant pleaded guilty, it is not really a picture of remorse that emerges. Notwithstanding a number of chances of which he has had the benefit over a period of years, the applicant has shown himself to be unwilling to mend his ways or accept the necessary discipline which a crime-free lifestyle demands. It is a particularly serious aspect that he continued to offend while on parole and did this without apparent inhibition. While he did plead guilty, it cannot be said that sufficient allowance was not made for this fact in the sentences imposed. The magistrate who sentenced in October of 1994 by imposing the cumulative term of two years made a fresh parole recommendation pursuant to s.157(3) of the Penalties and Sentences Act and he ordered that the applicant be eligible to be considered for parole twelve months from the day of sentence. This, on one view, involved some concession to the applicant which could be related to the guilty plea since it resulted in eligibility well before the halfway point of what was, in effect, a three year term to be served from October 1994. Notwithstanding the availability of other sentencing options open to the magistrate including the course of sending him for sentence to the District Court, it cannot be said that the magistrate who dealt summarily on 31 October 1994 with the offences that were involved, imposed sentences which should be regarded as excessive. The application for leave to appeal against the sentences should be refused.