R v Cook

[1994] QCA 282

IN THE COURT OF APPEAL [1994] QCA 282

SUPREME COURT OF QUEENSLAND

C.A. No. 138 of 1994

Brisbane
[R. v. Cook]

BETWEEN

T H E Q U E E N
v.
DAVID JOHN COOK

(Applicant)

Davies J.A.
McPherson J.A.

Ambrose J.

Judgment delivered 10/08/94
Reasons for judgment by the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. THE SENTENCE IS VARIED BY ADDING A RECOMMENDATION THAT THE APPLICANT BE CONSIDERED FOR PAROLE AFTER SERVING 18 MONTHS OF THE SENTENCE OF IMPRISONMENT IMPOSED BELOW.

CATCHWORDSCRIMINAL LAW - SENTENCE - 4 x UUMV, 5 x wilful damage; 6 x stealing; 2 x receiving = 2 years (concurrent) - 1 x UUMV, 36 other offences taken into account under s.189 Penalties & Sentences Act 1992 = 2½ years (cumulative) - Whether sufficient regard given to extensive co- operation with police - Plea of guilty on ex officio indictment - 25 years old - Previous convictions - Unfortunate family background - 2 year old daughter.

Counsel:K. McGinness for the applicant

P. Callaghan for the Crown

Solicitors:Legal Aid Office for the applicant

Director of Prosecutions for the Crown

Hearing Date: 1 August 1994

REASONS FOR JUDGMENT BY THE COURT

Judgment delivered the Tenth day of August 1994

This is an application by David John Cook for leave to
appeal against sentences imposed in the District Court for a
series of offences to which he pleaded guilty on 11 March 1964.
The effective sentence for all 18 offences in the indictment
was 4½ years. It was arrived at as follows: imprisonment for 2
years in respect of four counts of unlawful use; 12 months for
five counts of wilful damage; 12 months for six counts of
stealing; 12 months for two counts of receiving; and 2½ years
for a further count of unlawful use of a motor vehicle. The
sentence on the final count was made cumulative upon the other

sentences, which were concurrent, thus producing the effective

sentence of 4½ years referred to.
The sentence on the final count seems substantial by comparison with the others, even allowing for the fact that the particular car involved in that count sustained damage to the extent of some $9,559.33, whereas the other vehicles were simply taken for joyrides. The explanation for the longer term of imprisonment imposed for that offence and the order making it cumulative appears to be that at the hearing the applicant asked that 36 further offences also be taken into account under s.189 of the Penalties and Sentences Act 1992. It seems likely that it was these offences that were responsible for the substantially increased sentence attached to the final count in the indictment.

The additional 36 offences were listed in a schedule lodged under s.189(1) with the consent of the prosecution. Of those offences, 23 were for receiving stolen goods, 9 were for stealing, and 4 were for wilful damage. Receiving stolen property has always been viewed seriously and dealt with severely. At the same time, although numerous, most of the articles in the list and in the indictment are of relatively small value. They do, however, include a fridge and freezer, a television, a Minolta camera, as well as a police uniform. Some of the smaller items were obtained from cars; others from shops; a substantial number (which were grouped as a single item no. 21 on the schedule) came from a display home. The total value of the items taken or damaged, apart from the particular car already mentioned, was put at some $9,000. The period covered by the offences extends from early 1992 until mid-1993.

The applicant's personal circumstances are that he is 25 years old. He has a recorded history of previous convictions for offences stretching back to 1985. Most of the convictions were recorded in 1987, with one in 1989, two in 1991, and two in 1992/1993. He has served terms of imprisonment in the past and has received the benefit of probation on several occasions. Unusually for an offender of this kind, the applicant has a reasonably consistent work record. His offences, including those the subject of the present application, are said to have been committed during sporadic periods of unemployment.

The applicant has an unfortunate family background. At the age of 10 he was initiated into crime by his cousins, who used to take him out stealing at night when his mother was otherwise occupied. The applicant's father died when he was 18 years old having spent 22 years of his life in prisons. The applicant himself has a two year old daughter. He says he is determined to keep her away from a life of crime. He has spent time voluntarily helping children in the Endeavour Foundation, and a former employer gives him a favourable reference.

These matters were all placed before his Honour at the sentence hearing. On their own they would not warrant intervention by this Court. The only substantial matter meriting consideration on this application is whether sufficient account was taken of the applicant's extensive co-operation with the police and prosecuting authorities in bringing his offences to court. The process began when police executed a search warrant at the applicant's residence in June 1993. On that occasion items 14 to 27 in the schedule were located. The appellant admitted they were stolen and assisted the police in identifying the owners. All of that property was returned.

A further search warrant was executed on 2 September 1993, when items 28 to 36 in the schedule were recovered and restored with the assistance of the applicant. On 13 September 1993 the process was repeated, and the applicant disclosed the other offences in the indictment and the schedule. He requested an ex officio indictment and pleaded guilty at the first opportunity.

A factor that plainly militates against a lighter sentence is that some of the subject offences were committed while the applicant was on bail. On the other hand, his co-operation has resulted in the return of most of the property taken and has saved the expense of committal proceedings and a trial or trials. His Honour in sentencing said he took account of these matters in reducing the overall sentence to 4½ years. For that reason he refrained from making any recommendation with respect to probation.

In the end, however, we doubt whether, having regard to the duration of the imprisonment imposed, the sentence sufficiently reflects the extent of the appellant's co-operation in rectifying the wrongs he had done and the expense saved. The procedure provided in s.189 is based on a practice used in England over a long period of time : see D.A. Thomas, Principles of Sentencing, 2nd ed., at 374-375. Although the Queensland legislation diverges from the English model in certain respects, it is also designed to encourage an accused person to disclose other offences and have them taken into account for sentencing purposes at a single hearing without incurring the expense or delay of formal processes. Both procedures share a dual aim, which is to remove "a workload from the overburdened system of the administration of criminal justice. It is of great benefit to the accused because it means ... that after the sentence he will be able to face life freed of the threat of punishment for the offences that have been taken into consideration at his request". See per Scarman L.J. in R. v. Walsh (March 8, 1973), reported in Thomas, Current Sentencing Practice, vol. 2, L.3 3AOP. It enables an accused person to put his past behind him in the hope of beginning a new and trouble-free existence in the future.

The applicant accepts that he must undergo punishment for the offences he has committed, but he claims that he is now determined to mend his ways. He is said to be a "materialistic junkie" and he has begun receiving psychiatric counselling to assist him in overcoming that problem. His past record of employment and the extent of his co-operation with the police in the matter of these offences provide some reason for thinking that on this occasion his motivation to reform himself may be genuine and effective.

Even allowing for the number of individual offences involved, the effective sentence imposed on the applicant is at the higher end of the range when regard is had to the ultimate loss that has not been made good. We think that the case was one in which a specific recommendation for parole was called for in order to reflect his co-operation and his relatively successful efforts to make good much of the loss and trouble he has caused.

The application will be granted and the appeal allowed. The sentence is varied by adding a recommendation that the applicant be considered for parole after serving 18 months of the sentence of imprisonment imposed.

ABBREVIATED CATCHWORDS:

[R. v. Cook] CRIME -

Davies J.A./McPherson J.A./Ambrose J.
August 1994