R v Cole

[1997] QCA 19

COURT OF APPEAL

[1997] QCA 019

FITZGERALD P
DAVIES JA

FRYBERG J

CA No 469 of 1996
THE QUEEN
v.

TERRENCE GEORGE COLE Appellant

BRISBANE
..DATE 11/02/97
110297 T18/LZG16 M/T COA13/97
THE PRESIDENT: On 26 September 1996 the appellant was convicted
in the District Court at Mackay on counts which allege that on a
date unknown between 11 November 1995 and 16 November 1995 he
stole property referred to in the indictment and/or that on a
date unknown between 11 November 1995 and 26 December 1995 he
received the property.

Pursuant to subsection 568(4B) of the Criminal Code, or so we have been informed, the jury returned a verdict convicting the appellant of stealing or receiving with an indication that it was unable to decide which of the offences had been committed.

On the following day, 27 September 1996, the appellant was sentenced to imprisonment for 18 months. At the time he was 33 years of age, having been born on 5 November 1964, and was 31 years at the time of the offences.

His criminal history is set out in part in the Appeal Record Book, which is confined to his criminal history in Queensland. It shows dishonesty from early 1980, which means from about the time the appellant was 15 or 16 years of age including a number of serious offences which have attracted terms of imprisonment.

It emerged in the course of the hearing before this Court that the appellant also has criminal convictions elsewhere, namely, in at least Victoria, where he was serving imprisonment - the criminal history does show some criminal history in Victoria, I am sorry - and he had been released on parole in Victoria when he was extradited to Queensland in 1989 where he had earlier committed a series of serious offences.

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On 9 September 1991 he was convicted of stealing with actual
violence whilst armed with a dangerous weapon on 14 April 1989
and sentenced to imprisonment for five years and two months with
a recommendation that he be considered for parole after serving
one year and five months. There were also a number of other
offences of dishonesty and on each of those charges he was
convicted, and on some sentenced to imprisonment for one year
and eight months, all sentences to be concurrent, and on others
convicted and sentenced to imprisonment for six months, again,
all sentences to be served concurrently.

It seems that despite the recommendation that he be recommended for consideration for parole after serving one year and five months he was not in fact released on parole until he had served a considerably longer period, approximately three years and two months. He was released for parole on 18 November 1994 and, inexplicably, at least so far as I can understand, the parole order indicated that the parole period of the order would not expire until 6 April 1997 although it seems to me that, on the information before this Court, it would probably have expired in November 1996.

The appellant has appealed against his conviction in the District Court on 26 September 1996 of stealing or receiving and has applied for leave to appeal against his sentence. The facts relating to the conviction appeal can be shortly stated. The complainant left his house on about 12 November 1995 and returned several days later when he noticed that the front door had something wrong with it and, on entry, ascertained that drawers were open, cupboards were open, someone had been through 110297 T18/LZG16 M/T COA13/97

his belongings, and the property, including two guns, was missing. On Christmas Day that year he visited a friend, and while he was there met a man named Self who mentioned that he had two guns for sale. The complainant showed interest in purchasing them, and when shown the guns by Self he recognised them as his own and pretended to be interested in purchasing them. During this process the guns were taken by the complainant, whereupon he informed Self that they were his and that he was keeping them.

Self gave evidence against the appellant, as did his girlfriend, one Chapman, that the appellant had told Self that he had two guns for sale, that the appellant went away when Self expressed interest and returned with the guns which Self purchased for $100. Approximately three weeks to a month later the appellant told Self in the presence of Self's girlfriend that the guns had been stolen and Self thereupon determined that he would sell the guns as quickly as possible so as not to be caught with stolen property.

There was broad confirmation of his version of events by Chapman, although there were discrepancies between them in their respective accounts of what occurred. The appellant did not give evidence. The appellant's grounds of appeal, or his only ground of appeal really, was that the verdict was unsafe and unsatisfactory in all the circumstances and particularly having regard to conflicts in the evidence of the witnesses Chapman and Self.

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Those conflicts were spelt out by the appellant in a document
which he placed before the Court headed "Appeal Against
Conviction", and I do not propose to go through them in detail.

They were not elaborated upon in oral argument after I informed the appellant that, speaking only for myself, I was unable to find any substance in them, and I remain of that view.

They are the sorts of differences in evidence which occur when witnesses are giving evidence according to their best recollection and there is nothing in the discrepancies whatever which indicates that the jury ought not have been satisfied beyond reasonable doubt of the appellant's guilt which indeed seems self evident. The matter which the applicant principally pressed before the Court was his application for leave to appeal against sentence and there are some difficulties in understanding what the Trial Judge did in this respect.

His Honour noted that there was very little to be said for the appellant and referred to his considerable criminal history and no exception could be taken to that. His Honour also seems to have made a mistake in favour of the appellant in that he said that since 1989 apart from a judgment of insulting words there had been no convictions which suggested that the appellant was partly rehabilitated. Before this Court the appellant frankly acknowledged that he could not get as much benefit from that as the Sentencing Judge seemed to think in that at all material times he had been in prison either in Queensland or in Victoria.

I should mention two other matters that His Honour mentioned and
110297 T19/FLC14 M/T COA13/97
then another error which His Honour made. His Honour mentioned
in favour of the appellant that he had undertaken a period of
study which was nearly at its end but said that the appellant
had shown no remorse in relation to the offence. Both comments
seem to me to be justified. However His Honour also said that
the appellant was on parole at the time of the offence for which
he was sentencing the appellant in relation to a sentence of
five years and two months for which he had only served one year
and five months before parole. That was in error although His
Honour received no assistance from the prosecutor to draw that
to his attention. In fact as earlier indicated the appellant
had not been paroled until three years and two months in respect
of the offences for which he was sentenced in September 1991.
That is to say he was not paroled until November 1994.

Before this Court the respondent submitted that the sentence was appropriate and indeed I think at least intimated that a cumulative sentence would have been appropriate and for myself it is not clear why a cumulative sentence was not imposed. It was also acknowledged that the appellant had commenced studying for an associate diploma in applied science and an associate diploma on occupational health and safety at Kangaroo Point TAFE and that he would be prevented from completing the one semester which he had left because he would be in prison.

The grounds of appeal raised by the appellant were that the sentence was not in accordance with law because it was manifestly excessive. The respondent submitted that it was plainly not manifestly excessive to impose a concurrent sentence 110297 T19/FLC14 M/T COA13/97

of 18 months having regard to the appellant's criminal history, the nature of the offence itself and the fact that it was committed while on parole and the appellant's lack of remorse and I agree with those observations.

The appellant also referred to illness suffered by members of his family and his wish to be of continued assistance to them as a carer which he was unable to do while he was in prison but this in the circumstances of this case seems to me to be a matter of no moment whatever. The appellant's final point was that the sentencing Judge imposed a sentence which was more severe than necessary to achieve the purpose of punishing the appellant to the extent that was just in all the circumstances or to discourage the appellant from committing the same or a similar offence.

What I have already said is probably sufficient to say that I can see no substance in that submission. The appellant has previously had custodial sentences and has continued to offend and it is plain to me that a custodial sentence such as that imposed was called for and as I have said seems to me that a cumulative sentence would have been appropriate. The only complications that enter into this matter arise from the fact that neither counsel who appeared for the prosecution and the appellant before the Sentencing Judge nor His Honour appear to have turned their minds to the Corrective Services Act 1988 and in particular section 187 and the following sections.

Under section 187 when the appellant was sentenced for the offence the subject of the present appeal his parole in respect 110297 T19/FLC14 M/T COA13/97

of the offences for which he had been sentenced to imprisonment in September 1991 was automatically cancelled and doing the best I can arithmetically it seems that he has to serve a further two years imprisonment in respect of those offences subject to any remissions which he might gain or to the exercise of power of section 191 which would permit him to be released once more on parole. The sentence imposed in respect of the present offence, a sentence of 18 months, which must be served concurrently with the sentences imposed in September 1991 since no order that they be served cumulatively was made by the Sentencing Judge in the circumstances adds nothing of any consequence of disadvantage to the appellant. A conclusion which can hardly have been intended.

Accordingly I would not reduce the period of imprisonment which the applicant was sentenced to serve in respect of the offence the subject of the present appeal, although I would add a recommendation that he be considered eligible for release on parole after serving 16 months from the date when he was sentenced on 27 September - in the circumstances I am going to correct what I was just saying. I would not interfere with the sentence which was imposed by the Sentencing Judge in respect of the offence the subject of the present appeal. I would therefore refuse the appeal against conviction and refuse to grant leave to appeal against sentence merely adding that it should be apparent to the Queensland Corrective Services Commission and the Parole Board that it is the opinion of this Court that the sentences imposed upon the applicant in September 1991 and more particularly on 9 September 1991 and the sentence 110297 T19/FLC14 M/T COA13/97

imposed upon the appellant on 27 September 1996 in respect of the offence the subject of this appeal are to be served concurrently.

DAVIES JA: I agree.
FRYBERG J: I agree. It seems to me that in effect the
applicant has escaped scot-free for the offence of which he was
convicted. He should in my view have been sentenced to serve
the imprisonment imposed on him cumulatively. That was not done
and there is no application by the Crown to increase the
sentence. Consequently the sentence which he is now serving
will on the information before us expire before the sentence
imposed in 1991. What this shows is that prosecutors should be
astute to ensure in all cases where a person is being brought
before the Court for sentencing who is alleged to have committed
an offence either on parole or whilst serving a period of
imprisonment, there is placed before the trial Judge detailed
information about the dates relating to the sentence. That was
not done in this case.

I would add that in my understanding we are dealing with this case on the basis of the information put before us and if it should transpire that that information is not correct in any way adverse to the applicant it remains open to him to apply for an extension of time to deal with that contingency.

THE PRESIDENT: The order of the Court is appeal against conviction dismissed, application for leave to appeal against sentence refused.