Midson, Peter Mark v The Queen
[1998] TASSC 26
•2 April 1998
26/1998
PARTIES: MIDSON, Peter Mark
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 125/1997
DELIVERED: 2 April 1998
HEARING DATE/S: 5 March 1998
JUDGMENT OF: Cox CJ, Crawford and Slicer JJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Generally - Correction by Court of sentence which though justifiably above statistically established range was still in the circumstances manifestly excessive.
Harland-White v R 1/1998, Hrvojevic v R 24/1979, referred to.
Veen v R (No 2) (1987 - 1988) 164 CLR 465, applied.
Aust Dig Criminal Law [835]
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Application to reduce sentence - When granted - Particular offences - Property offences - Burglary and stealing - Substantial antecedents - Whether three years' imprisonment is manifestly excessive.
Aust Dig Criminal Law [1012]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: D J Bugg QC
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 26/1998
Number of pages: 7
Serial No 26/1998
File No CCA 125/1997
PETER MARK MIDSON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
CRAWFORD J
SLICER J
2 April 1998
Orders of the Court
Appeal allowed.
Sentence quashed.
Substitute a sentence of imprisonment for two years six months to commence at the expiration of all sentences to which the appellant was liable immediately prior to the imposition of the sentence appealed from.
Order that the appellant not be eligible for parole in respect of the substituted sentence before the expiration of two years thereof.
COX CJ
The appellant was sentenced to three years' imprisonment when he pleaded guilty to one count of stealing petrol worth $43.40 on 30 September 1997 and to one count of aggravated burglary and one count of stealing cash in excess of $10,000 on 6 October 1997. On the earlier occasion he stole the petrol from his employer, a company which conducted a service station at Brighton and the manager of which had terminated his employment there that day upon learning from the appellant that he was a convicted person on parole. The principal offences were committed in the company of other persons who entered the premises with safe-breaking equipment secure in the knowledge supplied by the appellant that the office area was not monitored by security surveillance. There the other offenders broke open a safe and stole $10,561. The appellant's part was to supply transport to the burgled premises for his co-offenders and the equipment they were to use and to return when summoned on his mobile telephone in order to facilitate their get away and the disposal of the safe-breaking equipment. He received about $3,500 of the stolen money and went Interstate where he spent it. The other offenders have not been convicted.
The appellant, who appeared in person, appealed on the basis that the sentence was manifestly excessive, particularly having regard to the subsidiary part he had played in the commission of the principal crimes. As the learned sentencing judge said that he regarded the theft of the petrol as a fairly minor matter in the overall context of the complaint, although being illustrative of the appellant's habitual dishonest approach to life, it seems clear that his Honour considered that a sentence of three years' imprisonment was appropriate to the burglary and theft committed in October 1997 and that the earlier theft did not justify a separate additional sentence. Thus it was put that this was, in effect, a sentence imposed for a single instance of burglary and stealing and as such was so far outside the range of sentences hitherto imposed by the court for similar single instances of burglary and stealing that this demonstrated its manifest excessiveness.
In the recent case of Harland-White v R 1/1998 it was observed by Crawford J at 1 that a sentence of three years' imprisonment for a single instance of burglary and stealing was very high. He said that sentencing records revealed that eighteen months' imprisonment is high for a single episode and that the highest sentence imposed in the last fifteen years that he had been able to discover was one of two years' imprisonment for burglary and stealing from a fish factory. There is, however, the case of Scott and Sullivan cited by Professor Warner in her treatise on Sentencing in Tasmania published in 1990 where, in March 1984, I imposed a sentence of two years six months' imprisonment on recidivist offenders of mature years for one instance of burglary and theft from a video store of goods to a value in excess of $40,000. Professor Warner, at 388, suggests that this Court regards a sentence of two years as the upper end of the range for one incident of burglary and stealing, citing Donaldson 34/1977, Hrvojevic 24/1979 and Prestage v R [1979] Tas R 270. Of this proposition, Wright J in Harland-White (supra) at 2 of his reasons said:
"With all respect, I think that this proposition is misleading, as the three cases mentioned involved appeals by prisoners who were claiming that sentences actually imposed upon them were manifestly excessive. To dismiss the appeals as was done in Donaldson and Hrvojevic, does not imply that the Court of Criminal Appeal considered that the sentences actually imposed were at the upper end of the appropriate range. In Prestage, although the sentence was reduced, this was on the basis that it was out of parity with a co-offender, not on the basis that it was, in itself, excessive or at the top end of a permissible range. In my opinion, the cases referred to do not support the notion that two years' imprisonment is near the limit of a proper sentence for such offences."
In Hrvojevic (supra), a two year sentence was imposed on a 31 year old offender with prior convictions on four separate occasions for similar crimes who broke into a hotel and forced open, with a tyre lever a cupboard from which he stole $730. Neasey J said at 2 - 3 of his reasons for judgment:
"The sentence itself of 2 years imprisonment was perhaps a little longer than the average sentence in this State for a single episode of burglary and stealing committed by an offender with prior convictions for similar offences, but that in itself does not mean that the sentencing discretion miscarried. Burglary and stealing are by far the most common offences dealt with by this court in its criminal jurisdiction, and in my view it would be quite wrong if it should be thought that a person frequenting this area of crime could go on repeating such offences secure in the knowledge that if caught and convicted he could expect to receive a sentence no longer than, say, 18 months. A sentence of two years in the present case was comfortably within the boundaries of a properly exercised discretion."
In Harland-White (supra) the Court considered the sentence of three years' imprisonment appropriate to the gravity of the particular offence. It involved the burglary of a public hospital and the breaking open of three safes from which large quantities of valuable and addictive drugs were stolen by an offender with a long record for crimes of violence and dishonesty. Obviously the Court cannot be constrained by a range which can be shown statistically to have emerged. Such a range is a helpful guideline in many cases, but in dealing with a single instance of burglary of a bank and the theft from its vaults of large sums of money, a court would derive little guidance from past statistics. How many of the single instances of burglary and stealing among the statistics were cases of safe-breaking is not apparent from the records. Cosgrove J, when sentencing the appellant in Cadman v R 15/1985, said in a passage approved by Nettlefold J:
"Crimes like safe-breaking are not the product of a sudden impulse. They are not a simple yielding to temptation and of backsliding. They are deliberate entries into criminal conduct."
It is not unusual to find that the offenders have substantial records, have a professional rather than amateur status and manage to evade detection for some time, being ultimately dealt with for multiple offences. Indeed, it often happens (as it did here, although the ancillary crimes were dealt with summarily and cannot therefore be taken into account) that the offenders burgle and steal the equipment necessary to break open the safe, the subject matter of the principal charge. In consequence, these offences are placed for statistical purposes in a different range.
One of the objects of punishment is deterrence, both general and personal. The learned sentencing judge in this case had the task of sentencing, for a serious offence, a man of mature years with a very long history of criminal conduct. Thirty-one burglaries and eighteen stealings had been proven against him in the Children's Court. In 1985, at the age of 17 years, he received his first sentence of actual imprisonment. Thereafter he has at least twenty-four more convictions for burglary, twenty-three for stealing and other convictions for receiving stolen property, forgery, uttering and escape. He has been imprisoned many times for lengthy periods and this is the third occasion when he has committed crimes while on parole. In January 1997 he was paroled for two years four months, but less than ten months later committed the present offences.
While an offender must be sentenced for the crime of which he has been found guilty and not for his record of past offences, deterrence not only of him but of other like minded offenders and the protection of society generally may call for greater than usual punishment, provided that it yet remains proportionate to the gravity of the offence. In Veen v R (No 2) (1987 - 1988) 164 CLR 465 at 477 - 478 in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ, their Honours referred to the first of two relevant sentencing principles in these terms:
"The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."
In the present case, a substantial amount of money was stolen. Although the appellant did not himself enter the premises, he was present when the oxyacetylene equipment needed for the intended safe-breaking was placed in his car and he transported it and the main offenders to the scene of the crime. He used his knowledge as a former employee to facilitate the commission of the crime and the avoidance of detection while it was being carried out. Then he transported the co-offenders, together with the loot, some distance before they threw the equipment in a river and concealed some of the proceeds of the crime. None of the money stolen was recovered.
In these circumstances, a sentence significantly higher than that which appears to have emerged as a range over the last three decades was justified in my view; and having regard to the appellant's bad record for parole violation, the imposition of a non-parole period greater than that which applies if the court does not nominate such a period was also justified. The learned sentencing judge imposed a non-parole period of thirty months of the three year term. Nevertheless, the overall sentence, in my view, remains manifestly too great. Had the appellant not pleaded guilty and had he been one of those who entered the premises and opened the safe rather than playing the lesser, though nonetheless vital, part which he did, such a head sentence might have been justified. But having regard to these two factors in particular, some reduction is called for. I would allow the appeal and substitute a sentence of two years six months' imprisonment to commence at the expiration of all sentences to which he was liable at the time he was sentenced by his Honour. I would order that he not be eligible for parole before the expiration of two years of that sentence.
CRAWFORD J
I agree, for the reasons given by the Chief Justice, that the appeal should be allowed, that there should be substituted a sentence of two years six months' imprisonment to commence at the expiration of all sentences to which the appellant was liable at the time he was sentenced at first instance and that he should not be eligible for parole before he has served two years of that sentence.
A sentence greater than three years' imprisonment would not have been justified, even if the appellant had pleaded not guilty. He was entitled to some discount for his plea of guilty which followed his confession to the police in the course of a video recorded interview. To my mind, the sentence of three years' imprisonment was plainly excessive having particular regard to that aspect.
The reduction of a sentence of that length by only six months would in most cases be properly regarded as merely tinkering with the sentence and as evidence that the original sentence was not manifestly excessive, and I am particularly mindful of that. Nevertheless, the test is not a mathematical one and in the circumstances of this case I am satisfied that two years six months' imprisonment was appropriate and that the additional six months imposed by the learned sentencing judge resulted in the sentence being manifestly excessive.
SLICER J
The appellant was sentenced to a term of imprisonment for a period of three years following his plea to two counts of stealing and one of aggravated burglary. One count of stealing petrol worth $43.40 involved theft from his employer and the remaining counts involved the same premises, but occurred after the appellant had left his employment. The latter crimes were committed in company (hence the indictment for aggravated burglary), and, on the material placed before the learned sentencing judge, it would appear that the role of the appellant was one of provision of information, transportation and assistance in the disposal of safe-breaking equipment. Some $10,000 was taken, and, by one means or another, the appellant received some $3,500 of stolen money. The offender, aged 29, has an extensive record for crimes of burglary, stealing, receiving and other acts of dishonesty.
The sentence of imprisonment would appear at first glance to be outside the ordinary range of those imposed for crimes of this nature. The range of appropriate penalties has recently been discussed by this Court in Harland-White v R 1/1998, and it is not necessary to traverse the issues discussed there. Suffice to say that the circumstances of this case are not directly comparable with those of the former. Nevertheless, this offender has what could be best described as a "professional" record with a history of parole violation and escape. It is obvious that repeat offenders should expect substantially longer terms of imprisonment, if only for the continued protection of society (Veen v R [No 2] (1988) 164 CLR 465). It may be, as this appeal illustrates, that there is a need for this Court to conduct a review of the range of penalties referable to "professional thieves" who engage in planned and expensive acts of criminal conduct. As Nettlefold J observed in Bauer v R A65/1987:
"... a loyal application of the principle stated by Mason J [Lowe v R (1984) 154 CLR 606 at 610 and ff] will mean that, from time to time, the Court of Criminal Appeal will need to review the current level of sentence for a particular crime to ensure that it accords with what is desirable in the then prevailing social circumstances."
But if such a review is warranted, then any increase ought be made incrementally rather than with one substantial remove. The required approach is to ensure that the process does not engender grievance and depart from the requirements of consistency. The desirable course is that suggested by Bray CJ in R v Barber (1976) 14 SASR 388 (a course approved by the High Court in Poyner v R (1986) 66 ALR 264) when he said at 389 - 390:
"As I have said before, if that standard is too low, it can be raised after due warning, but by steps and not by leaps."
In my opinion, the sentence imposed on the appellant did not fully accord with the above principles. Nevertheless, the nature of the conduct, together with the antecedents of the offender, warrants sanctions significantly greater than that which might appear from an historical examination of previous sentences. Allowing for the plea and the degree of involvement, I would impose a sentence of two years and six months' imprisonment. Given the appellant's history of parole violation and escape, I would impose a non-parole period of two years.
The order which I propose is that the appeal be allowed and substituted by a sentence of imprisonment of two years and six months, such sentence to commence at the expiration of the sentences currently being served. I would order that the appellant not be eligible for parole before the expiration of two years of that sentence.
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