R v Cook

[1992] QCA 126

IN THE COURT OF APPEAL [1992] QCA 126

SUPREME COURT OF QUEENSLAND	C.A. No. 2 of 1992
In the Court of Appeal
Mr Justice Davies Mr Justice Pincus Mr Justice Shepherdson

T H E Q U E E N

v.

STEWART ROBSON ARMSTRONG COOK

(Applicant)

JUDGMENT - DAVIES AND PINCUS JJA.

Delivered the 29th day of May 1992

The applicant seeks leave to appeal against a total sentence of two years imposed on him in the District Court at Southport on 3 December 1991. On that day he pleaded guilty to six offences. Three of those, two of unlawfully using a motor vehicle with circumstances of aggravation and one of breaking and entering with intent to commit an indictable offence, were committed on 11 March 1991. He was sentenced to two years' imprisonment on the breaking and entering conviction and twelve months on each of the unlawful use convictions. On a further conviction for unlawful use of a motor vehicle and wilful damage to part of that motor vehicle on 22 March 1991 he was sentenced to twelve months' imprisonment, on a conviction for having a motor vehicle in his possession on 10 May 1991 without the consent of the person in lawful possession and with the intention of depriving that person of its use and possession he was sentenced to a further twelve months' imprisonment and upon a conviction for wilful and unlawful destruction of a bedsheet and blanket whilst in custody on 20 May 1991 he was sentenced to three months' imprisonment. All terms of imprisonment were concurrent.

All of these offences were committed whilst the applicant was on bail in relation to three charges of unlawful use of a motor vehicle for which he was sentenced to twelve months' imprisonment in each case, one charge of attempted breaking and entering a dwelling house with intent, and one of unlawful use of a motor vehicle used for the purpose of facilitating the commission of an offence, for each of which he was sentenced to two years' imprisonment, two charges of breaking and entering a dwelling house with intent and one charge of breaking and entering a shop with intent, for each of which he was sentenced to two and a half years' imprisonment and a charge of assault for which he was sentenced to three months' imprisonment. All sentences were concurrent and were imposed on 22 July 1991. They were, however, cumulative upon a term of three months imprisonment imposed on him by a Magistrate on 24 June 1991 for breaches of the Bail Act 1980, unlawful use and attempted such use of a motor vehicle, obstructing police and stating a false name.

The sentences the subject of the present application were made cumulative upon the total sentence imposed on 22 July 1991 which, as the applicant said correctly, will result in an effective term of imprisonment of four and three quarter years.

The applicant is only 19 years of age but has a poor criminal record dating from 1989. Furthermore, there was, as the learned sentencing judge noted, a degree of professionalism involved in the applicant's criminal activities the subject of the present application. He boasted of making thousands of dollars from those activities and indeed had thousands of dollars in his possession in cash. He also had in his possession and used a radio scanner to monitor police broadcasts so as to prevent detection. He demonstrated a degree of expertise in vehicle entry and he was undeterred by a burglar alarm at the scene of the break and enter offence. He also used a false name to police, attempted to flee and told lies to the police on more than one occasion.

On the other hand he is a young man, he appears to have the support of his parents and his father is prepared to offer him a job upon his release from jail. Furthermore, he pleaded guilty at an early stage though his conduct in custody leads us to doubt that this was due to remorse rather than acceptance of the inevitable. It is also relevant that, notwithstanding his poor criminal record, he had not been sentenced to gaol before 24 June 1991. He has an alcohol problem which, it was said on his behalf, he was endeavouring to overcome.

The applicant also contended that his sentence was disproportionate to a sentence imposed on Anthony Burghardt who he said had been involved with him in the offences the subject of the present application. The Court asked the Crown for further information about this. The unchallenged evidence now is that Burghardt was not charged (and hence convicted) with any of the offences the subject of this application.

However, Burghardt was involved in at least some of the offences for which the applicant was sentenced on 22 July 1991. On the offences for which the applicant was sentenced to two and a half years, Burghardt was sentenced on 15 April 1991 to three years but with a recommendation for parole after twelve months. At the same time he was sentenced to imprisonment for shorter concurrent terms for other offences. The sentencing judge indicated that he was giving Burghardt full credit for five and a half months which he had already served awaiting sentence. He also indicated that Burghardt had not only pleaded guilty but had co-operated with the police as to his involvement in the offences. It is impossible to say, if it were relevant, that the sentence imposed on the applicant in July 1991 was disproportionate to that imposed on Burghardt in April 1991 for some of the same but also for other offences.

Leaving aside for the moment his Honour's order that the sentences be cumulative on the sentence presently being served, we do not think that a total of two years was manifestly excessive. Were it not for the fact that it was cumulative upon the earlier sentence of two and a half years (effectively two and three quarter years) we would not interfere with it.

It is however a matter of concern that, had the applicant been sentenced for these offences, as he could possibly have been, on 24 June 1991, he would not have been properly sentenced to a term of four and three quarter years' imprisonment, bearing in mind that this would have been his first term of imprisonment.

Accordingly, in our view the sentence which the learned sentencing judge should have imposed should have reflected the totality of his criminal conduct including that for which he had already been sentenced by a magistrate in June 1991 and, as we understand it by the same sentencing judge, in July 1991. In our view, an appropriate sentence to reflect the totality of that conduct would have been three years. Accordingly, we would grant the application, allow the appeal, quash the sentences imposed and in lieu thereof impose a term of three months' imprisonment for each of the charges other than that of wilful destruction of property and a term of two months' imprisonment on the charge of wilful destruction of property, those terms to be served concurrently with each other, but cumulatively upon the sentence imposed on 22 July 1991.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 2 of 1992
In the Court of Appeal
Mr Justice Davies
Mr Justice Pincus Mr Justice Shepherdson

T H E Q U E E N

v.

STEWART ROBSON ARMSTRONG COOK

(Applicant)

JUDGMENT - DAVIES AND PINCUS JJA.

Delivered the 29th day of May 1992

MINUTE OF ORDER:	Application for leave to appeal against sentence granted. Appeal allowed. Sentences imposed on 3 December 1991 quashed. In lieu thereof sentence of three months' imprisonment imposed on each of the charges other than that of wilful destruction of property, and sentence of two months' imprisonment imposed on the charge of wilful destruction of property, those terms to be served concurrently with each other but cumulatively upon the sentence imposed on 22 July 1991
CATCHWORDS:	CRIMINAL LAW - SENTENCE - 19 year old applicant sentenced to 2 years for 2 x unlawful use of motor vehicle, breaking and entering and wilful destruction whilst on bail - whether as cumulative upon previous sentences judge failed to have sufficient regard to totality principle
Counsel:	R. Martin for the Crown The applicant appeared in person
Solicitors:	Director of Prosecutions for the Crown
Hearing Date(s):	26 March 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND C.A. No. 2 of 1992

T H E Q U E E N

v.

STEWART ROBSON ARMSTRONG COOK

(Applicant)

____________________________________________________
DAVIES J.A.
PINCUS J.A.
SHEPHERDSON J.
____________________________________________________

Joint Reasons for Judgment of Davies JA and Pincus JA, and Reasons for Judgment of Shepherdson J. delivered the 29th day of May 1992

____________________________________________________

"APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCES IMPOSED ON 3 DECEMBER 1991 QUASHED. IN LIEU THEREOF SENTENCE OF THREE MONTHS' IMPRISONMENT IMPOSED ON EACH OF THE CHARGES OTHER THAN THAT OF WILFUL DESTRUCTION OF PROPERTY AND SENTENCE OF TWO MONTHS' IMPRISONMENT IMPOSED ON THE CHARGE OF WILFUL DESTRUCTION OF PROPERTY, THOSE TERMS TO BE SERVED CONCURRENTLY WITH EACH OTHER BUT CUMULATIVELY UPON THE SENTENCE IMPOSED ON 22 JULY 1991."