R v Barber

[1992] QCA 341

COURT OF APPEAL  [1992] QCA 341

MACROSSAN CJ
McPHERSON JA
AMBROSE J

CA No 178 of 1992

THE QUEEN

v.

MICHAEL RAYMOND BARBER  Applicant

BRISBANE

..DATE 17/08/92

JUDGMENT

170892
ORDER
THE CHIEF JUSTICE:   This is an application for leave to appeal against sentence.  The applicant pleaded guilty to 10 charges of receiving stolen property and was sentenced on 28 May this year.  The sentence imposed was a term of 2 years imprisonment, but there was added a recommendation for early parole after 4 months of that term.

The applicant is a 34 year old with a criminal history.  His criminal history starts in 1977 and it is quite extensive.  Included in it there are a number of offences involving dishonesty, possession of property suspected of being stolen, stealing, and attempted false pretences.  These are amongst the offences appearing in his criminal history sheets.  The property in question that is involved in the 10 counts was valued, we are informed, at over 66 and a half thousand dollars.  The items were chain saws, microwave ovens, bicycles, oxyacetylene equipment, engine and pump and a quantity of tools.  The indictment specified dates for the offences unknown but between January and June of 1991.  The proposition put forward for the applicant was that he had bought the property either at markets or from acquaintances but it appeared that he had paid prices considerably below the market value of the property.

The learned sentencing Judge dealt with the applicant on a rather particular basis and gave him the benefit of a point of view which he stated.  He said, and it is true enough that the offences were serious ones, but he said that they had been brought to the attention of the authorities in June of last year, 1991.  He thought there was a significance in that because in October of 1991 the applicant was sentenced to a term of 12 months imprisonment for possession of a specified dangerous drug.  We are told it was cannabis.  The Judge continued that had the matters before him, that is the receiving charges, been brought on at about the same time as the drug offence, it was likely, in his view, that the applicant would have been sentenced to a term of imprisonment of about 2 years, and accordingly had the applicant been asked to plead to the receiving matters at that time, he would be much closer to being released from prison at the time the Judge was dealing with him which was May of this year.  For that reason, the learned sentencing Judge said that he intended to recommend he be considered for parole somewhat earlier than would otherwise be the case, and he made the order which I have already stated, including the recommendation for early parole after 4 months. 

It can be seen that had a two-year sentence been imposed back in October of 1991 when the twelve-month sentence for the drug offence was imposed, and had no special order been made for parole on the receiving charges, then eligibility for parole would have occurred at approximately the same time as the Judge arranged should be the case under the special order which he made.

In any event, be that matter as it may, the sentence imposed in the circumstances of 2 years imprisonment for receiving items of the value mentioned, when the order included a recommendation for parole after 4 months, and when the applicant had a criminal history such as we see, does not allow the conclusion to be reached, in my view, that the sentence is manifestly excessive, and I would refuse the application.

McPHERSON JA:  This is presented to us in form as an application for leave to appeal against sentence.  It is really an appeal against conviction and represents yet another attempt to appeal by an applicant to withdraw a plea of guilty.

The pleas of guilty in this instance were entered by the applicant deliberately after conferring with his counsel and solicitor before the hearing.  He signed a document, which is exhibited to us, in which he agreed to plead guilty to counts 9 to 28 in the indictment on the understanding that the Crown agreed to withdraw counts 1 to 8 and 29 and 30.  The Crown did withdraw those counts and some other counts in the indictment as well.  The applicant now says that there was also another, but unstated or unspecified, condition that the sentence that would be imposed for the offences to which he was pleading guilty should be made concurrent with an earlier sentence for possession of a drug which he was serving at the time.  He says that he would not have pleaded guilty to the subject offences in the indictment if it had not been for the fact that he was told that his counsel would try to get the sentences made concurrent with the one he was serving.

There is really no basis at all for accepting this explanation of the plea of guilty.  It discloses no reason for setting aside such a plea, even if we were minded to accept it.

The application, in my view, is misconceived, and I would refuse it.

AMBROSE J:    I agree.  In my view the sentence imposed, in the light of the background of the applicant, was a very lenient sentence indeed.

In my view no basis has been shown why leave to appeal against it should be granted.

THE CHIEF JUSTICE:    The application is refused.
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