R v Colombo

[1995] QCA 83

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane
  Appeal  No. 503 of 1994

[R. v. Colombo]

THE QUEEN

v.

ANTHONY MICHAEL COLOMBO
  (Applicant)

Macrossan CJ

Thomas J

White J

Judgment delivered 4 April 1995

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL ALLOWED.   SENTENCE VARIED IN ACCORDANCE WITH SCHEDULE.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - Whether manifestly excessive - Limitation on power to backdate sentences - Ss.154, 158 of Penalties and Sentences Act - Whether trial judge correct in imposing cumulative sentences.

Counsel:M.J. Burns for the appellant

D.Meredith for the respondent

Solicitors:Lang, Hemming & Hall for the appellant

Director of Public Prosecutions for the respondent

Hearing Date:   22 February 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

BeforeMacrossan CJ

Thomas J

White J

Appeal  No. 503 of 1994
[R v. Colombo]

THE QUEEN

v.

ANTHONY MICHAEL COLOMBO
  (Applicant)

JUDGMENT OF THE COURT

Judgment delivered 4 April 1995

The applicant seeks leave to appeal against sentences imposed for nineteen offences comprising one offence of assault occasioning bodily harm, three of wilful damage, one of attempted arson, one of arson, two of dangerous driving, one of serious assault, one of unlawful use, two of burglary, one of housebreaking, one of receiving, and five of stealing.  The offences and the sentences imposed with respect to each are contained in the schedule below:   

Date of Offence	Nature of Offence	Sentence
1	7 May 1993	Assault occasioning bodily harm	6 months
2	7 May 1993	Wilful damage (cash register)	1 month
3	7 May 1993	Wilful damage (cell door)	1 month
4	8 May 1993	Wilful damage (blanket)	1 month
5	18 August 1993	Burglary	3 years
6	18 August 1993	Stealing (various)	2 years
7	21 August 1993	Housebreaking	3 years
8	21 August 1993	Stealing (various)	2 years
9	22 August 1993	Attempted arson (motor vehicle)	2 years
10	23 August 1993	Arson  (motor vehicle)	4 years
11	29 August 1993	Dangerous driving	6 months
12	30 August 1993	Serious assault (police officer)	6 months
13	30 August 1993	Burglary	3 years
14	30 August 1993	Stealing (watch)	2 years
15	30 August 1993	Stealing (keys)	2 years
16	30 August 1993	Unlawful use	6 months
17	30 August 1993	Stealing (passport)	2 years
18	30 August 1993	Dangerous driving	6 months
19	Btwn 3 Aug 1993 and 9 Sept 1993	Receiving (various)	2 years

The sentences in respect of offences no. 5 (burglary - 3 years) no. 10 (arson - 4 years) and no. 13 (Burglary - 3 years) were made cumulative.  The effect was a head sentence of ten years.  Otherwise all the sentences were concurrent.  Although imposed on 17 November 1994, all sentences were ordered to commence on 30 August 1993 (subject to cumulative effect being given to the designated offences).  The reason for that direction was that the applicant had been taken into custody on 30 August 1993 in respect of two other offences (housebreaking and stealing) for which he had already been sentenced by the same judge in January 1994.  The sentence on that occasion was two years imprisonment, backdated to the date of arrest, 30 August 1993.  These earlier offences had been committed in August 1992, whilst the nineteen further offences for which he had to be sentenced were committed between May 1993 and August 1993.  His Honour took the view that it would be preferable to take account of the entire criminality of all these offences, and to impose a sentence that would take effect from the date when he was taken into custody.  In substance this was fair to the applicant and it avoided the imbalance that can occur when separate sentences are imposed on separate occasions.
           Unfortunately there is no power under the Penalties and Sentences Act to backdate sentences in this way.
Section 154 of the Penalties and Sentence Act states:

"154. Except as provided in sections 156(1), 158A and 159 and subject to an order being made under section 158, a term of imprisonment -

(a)on conviction on indictment - starts the day the court imposes imprisonment on the offender;  and

(b)on a summary conviction - starts at the beginning of the offender's custody for the imprisonment."

This substantially reproduces the former position under s.20 of the Criminal Code. Sections 156(1), 158(A) and 159 respectively refer to the power to make a cumulative order of imprisonment, and to the non-running of time when the offender is on bail or at large. Section 158 does not authorise the fixing of an earlier date for commencement of the term in the present circumstances, as it permits such an order only if the offender has been in custody "in relation to proceedings for the offence and for no other reason".
           Accordingly there was no jurisdiction to order that this particular term commence from 30 August 1993.  The order will have to be set aside and reframed.  However before framing any substituted order it is necessary to examine the substantial grounds raised on the appeal and to determine whether the intended sentence was excessive.
           The applicant was born in the Ukraine in 1938, although there is some doubt as to the year.  He and his family were displaced persons and were in various camps during the latter part of the war and until 1948.  They then came to Australia.  His criminal history commences in 1958 with a conviction for larceny, and for the next twenty years he ranged very widely through the criminal calendar.  He claims to have been twice shot by police, once in 1959 and once in 1969.  His convictions include shopbreaking, carnal knowledge of a girl between ten and sixteen, assault, robbery in company, breaking and entering with intent, receiving, street betting and using premises for betting, assaulting police, and escaping from legal custody.
           It should be noted that between 1978 and 1991 (age forty to fifty-three) he committed no offences.  However in May 1992 he was convicted of being found in an enclosed yard and of assaulting police.  He had by this time accumulated a substantial sum of money and unfortunately he entrusted his investment to a solicitor named Peter Palmer.  In about November 1992 the applicant discovered that he had been defrauded of that money.  He became distraught. 
           Since 1968 he had enjoyed a stable relationship with his de facto wife, but this broke up in May 1993 when his mood disorders and abuse of alcohol and rohypnol made him virtually impossible to live with.  A psychiatric report was tendered expressing the view that he suffers from a complex mixed personality disorder, a manic depressive psychosis and that these problems have been complicated by long-term alcohol and rohypnol abuse.  The doctor expressed the view that his ability to control his behaviour, his ability to think through issues, to control his emotions and to behave in a normal fashion were all significantly compromised during the time of commission of the offences.  It is against this background that his extraordinary conduct in may 1993 (the first four offences) and in August 1993 (the remaining fifteen offences) must be seen.
           During that period the applicant was arrested on six occasions and granted bail on five of them.  The following is a short summary of the circumstances.

Offences 1-4

Upon leaving the matrimonial home the applicant approached one Nespola for assistance.  Nespola and some friends gave him assistance but in the course of this an argument developed over money.  Two days prior to the assault the applicant visited Nespola's house and tried to push his way in.  The police intervened.  Nespola and his friends received a number of death threats the following days. 

On the day in question Nespola received a phone call from the applicant telling him he was going to come and shoot him and telling him he was on his way to the complainant's business.  In due course the applicant arrived at Nespola's business whilst he was attending to a customer.  The applicant took out an axe and threatened Nespola with it.  The applicant locked the door but later allowed the customer to leave.  He told Nespola to phone one of his friends and to tell him to bring a disputed necklace or he was going to put the axe through his head.  Nespola did this whilst on the phone, the applicant punched him in the face with a closed fist, and also damaged a cash register.  When taken to the police station he damaged a cell door and a blanket, claiming he did so because police refused to allow him to smoke a cigarette.

Offences 9 and 10

The complainant James Tyrie was a Crown witness.  Prior to the committal the applicant had come to Tyrie's house and threatened him including the words, 'I'll burn you down...'.  Tyrie gave evidence at the committal hearing on 22 June 1993.  On 22 August 1993 early in the morning Tyrie was woken by a flatmate and he found an area of grass on fire near the left rear side of his Pajero four-wheel drive and the adjacent tyre was on fire.  There was a large drum of combustible fluid sitting on the spare tyre at the rear of the vehicle and a number of two-litre milk containers placed around the vehicle containing a combustible liquid.  The vehicle was placed close to the residence.

The following morning at 5 a.m. 23 August 1993 Tyrie was woken by explosion and found that his vehicle was on fire.  The complainant again found drums of flammable liquid on the driveway and the driveway itself was burning and there were another seven two-litre milk containers around the front of the vehicle containing flammable liquid.  The vehicle was destroyed.

An associate of the applicant implicated him in the two attacks on the vehicle.  This witness supplied him with petrol and when asked what it was for the applicant said, 'They're for Tyrie, arsehole.  He's one of the witnesses I'm after.'  After the first incident the applicant was asked by this witness what had happened and he replied, 'Well, he's short of one brand new four-wheel drive.'  The Pajero was worth $50,000.  At the time the applicant was on bail in relation to the matter about which Tyrie had given evidence.

Offence 11

This dangerous driving charge occurred after police had intercepted the applicant at Tallai.  When asked to get out of the vehicle the applicant drove off almost running down a police officer.  He was chased at speeds up to 130 kmh, travelling on the wrong side of the road and failing to stop at a 'Stop' sign.  At one stage the chase involved three or four police vehicles but the applicant was able to escape on that occasion.

Offences 12-18

These charges arose out of incidents on 30 August 1993.  At about 3.45 a.m. police were on patrol in the Main Beach area when the police officer noticed the applicant acting suspiciously.  He was seen to leave a property and was challenged by the complainant in count 12.  The applicant spun round and menaced the complainant with a long thin bladed knife.  The police officer backed off and the applicant disappeared into the darkness.

About 5.40 a.m. on the same day a citizen was disturbed by the applicant who walked out the side entry of his house.  His keys and other items were missing.  Shortly afterwards he heard his utility being driven off (it may be inferred, by the applicant).

At about 5.45 a.m. police officer observed the applicant speeding on Old Burleigh Road, Surfers Paradise in the vehicle he had taken.  There followed a high speed chase where the applicant exceeded the prevailing speed limits by up to 60 kmh.  The applicant eventually stopped the car and tried to get away but he was arrested.

Offence 19 - Receiving various property

When police went to the residence of the applicant they discovered property that had been stolen from six properties on the Gold Coast.

Offences 5-8

The complainant in count 5 arrived home to find the house had been broken into and the house ransacked.  Property totalling $14,960.00 was taken, of which only $4,960.00 was recovered.  The complainant in count 7 arrived home to find that a security alarm system of her house had been disabled and entry had been gained through a hole in the roof.  A safe was damaged in the course of the housebreaking and there was damage in excess of $8,000 to the house and the property.  Unrecovered property exceeded $11,000 in value. 

The total value of property stolen or received exceeded $50,000, and he caused $59,000 damage to other property.
           The pattern of his conduct during 1993 is that of a man acting outrageously and to some extent out of control.  The offences of arson and attempted arson in relation to a Crown witness are particularly serious;  so too were the burglaries in which substantial property was taken.  A completely lawless attitude is revealed, and it cannot be denied that over a considerable part of his adult life he has shown little respect for the law.
           It is difficult to find comparable sentences for such a multiplicity of offences.  It is the combination that must have a significant effect on the appropriate level of response from the court.  A large number of cases involving sentences for multiple offences were cited by the applicant's counsel and by the Crown, but there are so many points of distinction that there is little purpose in here referring to the cases.  Counsel for the Crown submitted that a proper range for multiple criminal activity of this seriousness, committed by a person with a substantial criminal history would be in the range nine to twelve years, whilst counsel for the applicant contended for a range of seven to nine years.  In our view, but for the mitigating effect of his reduced capacity to control his actions and associated matters, an appropriate effective sentence for this spate of criminal activity would be in the region of ten years.  Prima facie it would not matter if this effect were achieved by framing sentences, as the learned sentencing judge did, so that selected offences were given cumulative penalties, or whether an aggravated sentence were imposed in respect of the most serious matter or matters and other sentences were all made concurrent.
           Whilst his psychiatric conditions fall short of amounting to a complete defence, they are relevant to the question of culpability, and should not be taken lightly.  To some extent he contributed to the overall condition by excessive intake of alcohol and the drug rohypnol, and for this he remains accountable.  But there was a real and substantial psychiatric impairment of his capacity to control his actions, and it is to be noted that his instability followed a gross disturbance to his then relatively stable lifestyle through the depredations of a fraudulent solicitor.
           The applicant also suffers from a condition of Parkinsonism, which is perhaps a side-effect of current medication.  He also suffers from angina pectoris and has chronic artery disease.
           In our view, having particular regard to his diminished culpability, the appropriate sentence that he ought to be required to serve, having regard collectively to the 1993 offences and the two offences committed in August 1992, is one of seven years.  The present sentence must be framed in such a way that practical effect is given to the fact that he has been in custody in respect of some of these offences since 30 August 1993.  The present sentences which will now be substituted for those of the learned sentencing judge will commence from the date of his Honour's sentence, namely 17 November 1994. (Section 154).  This will require a reduction in the head sentence of one year and three months.  The sentence must also be framed to fix a parole date at approximately the half-way mark of a seven-year sentence notionally commencing on 30 August 1993.  That parole date will be 28 February 1997.
           The application should be allowed and the sentences below set aside and replaced with the sentences set out in the following schedule.  All sentences are concurrent.  There will be a recommendation under s.157(3) for consideration of parole on 28 February 1997 with respect to all sentences of imprisonment which he is now serving.  There should be a declaration that the time the applicant was held in custody in relation to proceedings for these offences is nil.

Schedule

Date of Offence	Nature of Offence	Sentence
1	7 May 1993	Assault occasioning bodily harm	6 months
2	7 May 1993	Wilful damage	1 month
3	7 May 1993	Wilful damage	1 month
4	8 May 1993	Wilful damage	1 month
5	18 August 1993	Burglary	4 years
6	18 August 1993	Stealing	2 years
7	21 August 1993	Housebreaking	4 years
8	21 August 1993	Stealing	2 years
9	22 August 1993	Attempted arson	2 years
10	23 August 1993	Arson	5 years & 9 months
11	29 August 1993	Dangerous driving	6 months
12	30 August 1993	Serious assault	6 months
13	30 August 1993	Burglary	4 years
14	30 August 1993	Stealing	2 years
15	30 August 1993	Stealing	2 years
16	30 August 1993	Unlawful use	6 months
17	30 August 1993	Stealing	2 years
18	30 August 1993	Dangerous driving	6 months
19	Btwn 3 Aug 1993 and 9 Sept 1993	Receiving	2 years