Jones v Director of Public Prosecutions

[2007] TASSC 36

[2007] TASSC 36

CITATION:              Jones v Director of Public Prosecutions [2007] TASSC 36

PARTIES:  JONES, Michael Thomas
  v
  DIRECTOR OF PUBLIC PROSECUTIONS

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 65/2006
DELIVERED ON:  31 May 2007
DELIVERED AT:  Hobart
HEARING DATE:  31 May 2007
JUDGMENT OF:  Slicer, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and enquiry after conviction – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – Particular offences – Property offences – Burglary and stealing – Jewellery stolen from shop.

Aust Dig Criminal Law [1017]

REPRESENTATION:

Counsel:
           Appellant:  K Baumeler
           Respondent:  A R Jacobs
Solicitors:
           Appellant:  Butler McIntyre & Butler
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2007] TASSC 36
Number of paragraphs:  11

Serial No 36/2007
File No CCA 65/2006

MICHAEL THOMAS JONES v DIRECTOR OF PUBLIC PROSECUTIONS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J

BLOW J
TENNENT J
31 May 2007

Order of the Court:

Appeal dismissed

Serial No 36/2007
File No CCA 65/2006

MICHAEL THOMAS JONES v DIRECTOR OF PUBLIC PROSECUTIONS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY)   SLICER J

BLOW J
TENNENT J
31 May 2007

1. This is an appeal against sentence.  The appellant was found guilty by a jury of one count of burglary and one count of stealing.  He was sentenced to 22 months' imprisonment, to commence at the expiration of a sentence that he was then serving.  No order was made as to parole, and he is therefore not eligible for parole: Sentencing Act 1997, s17(3A). The appellant contends that the sentence was manifestly excessive.

1. The charges related to the premises of a business known as Sheepskin and Opal World in Castray Esplanade, Hobart.  On the night of 27 April 2005, the appellant gained entry to the premises by smashing a window.  Repairs to the window cost about $2,000.  Having gained entry, he stole jewellery with a retail value of about $180,000, and a wholesale value of about $100,000.  Fortunately, the bulk of the property was recovered, although thousands of dollars worth of jewellery was not recovered. 

1. The appellant was 22 years old when he committed these crimes, and 24 years old when he was sentenced for them.  He had numerous prior convictions for crimes and offences, most of them involving dishonesty.  He had been sentenced to imprisonment on several occasions in 2001, 2002 and 2003.  In May 2004 he was paroled for ten months in relation to a sentence for aggravated armed robbery and motor vehicle stealing.  His parole had expired about seven weeks before these crimes were committed.

1. On 12 October 2005, some 5½ months after these crimes were committed, he was sentenced to 12 months' imprisonment with effect from 23 August 2005, with 9 months thereof suspended, in relation to dozens of offences, most of them involving dishonesty.  Some of those offences were committed before the crimes we are concerned with, and some of them subsequently.  He appears to have been released from custody in late November 2005.

1. He re-offended in late May 2006.  He was convicted of stealing, and of being found prepared for the commission of a crime, and sentenced to 8 months' imprisonment with effect from 27 May 2006, with no eligibility for parole.  He was serving that sentence when the sentence to which this appeal relates was imposed on 19 September 2006.  As a result, the learned sentencing judge was required to apply the totality principle that was discussed by the High Court in Mill v R (1988) 166 CLR 59. That is a factor that his Honour did not overlook.

1. Counsel for the appellant submitted that he had successfully completed the 10-month parole period that commenced on 11 May 2004, and that the learned sentencing judge had given insufficient weight to that factor.  That submission was misconceived.  The appellant has a conviction, imposed on 31 July 2006, for stealing property worth $2,500 on 13 February 2005.  That crime was committed whilst he was still on parole.

1. Counsel for the appellant made a submission to the effect that the learned sentencing judge should have made an order permitting the appellant to be released on parole.  His Honour concluded his sentencing comments by saying to the appellant, "I do not fix a non-parole period, having regard to your prior record."  Whilst supervision after his release from prison might have been desirable, it cannot be said that the course taken by the learned sentencing judge was either unreasonable or unjust.  His Honour was entitled to take the view that the appellant was a recidivist, that parole was inappropriate, and that a long sentence of imprisonment should be imposed for the purpose of protecting the public from him, bearing in mind that the sentence could not be disproportionate to the seriousness of the crimes.

1. This was a bad case of burglary and stealing.  Property with a wholesale value of around $100,000 was taken.  Substantial damage was caused in gaining entry. 

1. The appellant had spent 77 days in custody in relation to these crimes in 2005.  Otherwise, there was very little about the appellant that could be taken into account in his favour for sentencing purposes.  He had had a terrible childhood, and had turned to drugs and to crime.  He had taken some steps to plan for his future by buying a property and building a shed on it.  He had apparently stayed out of trouble for most of the 10-month parole period commencing in May 2004.  He had already served a sentence of imprisonment and been released in respect of crimes and offences committed by him between March and August 2005.  The crimes in question today were committed during that period.  In an ideal system of justice, he would have been dealt with for these crimes before his release from prison.

1. Despite those matters and the totality principle, we do not think the sentence of 22 months' imprisonment with no parole was manifestly excessive, particularly because of the appellant's record and the value of the property he stole.

1. We have therefore decided to dismiss the appeal.