R v Cornwall

[2005] QCA 345

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cornwall [2005] QCA 345

PARTIES:

R
v
CORNWALL, Jason Colin
(applicant/appellant)

FILE NO/S:

CA No 156 of 2005

DC No 147 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2005

JUDGES:

McPherson JA, Cullinane and Jones JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal against sentence granted

2.   Appeal against sentence allowed

3.   Sentence varied by substituting 18 months for three years as the period of probation

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - where applicant pleaded guilty in the District Court to entering premises and stealing - where applicant was admitted to probation for three years and ordered to perform community service for 80 hours - where co-offender pleaded guilty in the Magistrates Court and was fined $600 - where co-offender was principal offender - whether sentence is manifestly excessive as compared to the penalty imposed upon co-offender

Criminal Code Act 1899 (Qld), s 7, s 421, s 552H

Penalties and Sentences Act 1992 (Qld), Pt 5 Div 1

Lowe v The Queen (1984) 154 CLR 606, considered

Postiglione v The Queen (1997) 189 CLR 295, discussed

COUNSEL:

C W Heaton for the applicant/appellant

S G Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosections (Queensland) for the respondent

1. McPHERSON JA: I have read the reasons of Cullinane J and of Jones J in this application. I agree with both of their Honours.  The sentence should be varied by substituting 18 months for three years as the period of probation.

1. CULLINANE J: The applicant seeks leave to appeal against a sentence imposed upon him on 17 May 2005 in the District Court at Townsville.  He pleaded guilty to entering premises and stealing and was admitted to probation for three years and ordered to perform community service for 80 hours.  No conviction was recorded.

1. The applicant was born on 8 April 1982.  At the time he came before the court he had a prior conviction for unlawful entry of a vehicle with an attempt to commit an indictable offence. 

1. The applicant was apprehended in the early hours of 8 April 2004 after police had been contacted about a broken shop window in the inner city of Townsville.  He was located a short distance away from these premises and initially denied any knowledge of the matter.  One Crisp who was also charged with the offence was found inside the premises and was seen to be carrying a laptop computer with several other items.

1. There was a mobile phone found in Crisp’s possession which had three text messages on it from the applicant.  These plainly constituted warnings to the applicant of the approach of police and also informed Crisp of where he (the applicant) could be found.

1. It was accepted that a broken window at the premises was already broken when the applicant and Crisp came upon the scene and thus the offence charged was entering premises and stealing.

1. Crisp and the applicant were co-offenders when the applicant was previously convicted.

1. Crisp came before the Magistrates Court and pleaded guilty to a summary offence in the same terms. He was as a result exposed to a significantly reduced maximum penalty, namely three years instead of the 14 years imprisonment which s 421 of the Criminal Code 1899 (Qld) under which the applicant was charged provided for. Crisp was fined $600 and no conviction was recorded.

1. In sentencing the applicant the learned sentencing judge referred to Crisp’s sentence referring to the imposition of a fine as an option “which I rarely implement”.

1. He said that it was only in exceptional cases that someone who aids or assists or acts as a counsellor or procurer receives a greater penalty than the actor himself.  He made, however, allowance for the fact that Crisp had pleaded guilty in the Magistrates Court thus dispensing with the need for committal proceedings and was sentenced in respect of an offence which had a much lower maximum penalty.

1. The applicant contends that a period of three years probation representing as it does the maximum period for which a probation order might be made under Div 1 of Pt 5 of the Penalties and Sentences Act 1992 (Qld) is excessive.

1. A probation order represents an opportunity but at the same time it cannot be denied that it involves a degree of jeopardy during its currency and that a person subject to it is at risk of being dealt with in the event of a breach of it for the original offence as well as being exposed to a penalty under the Penalties and Sentences Act 1992 (Qld).

1. There is, it seems to me, some degree of incongruity between the sentences imposed upon Crisp on the one hand and the applicant on the other which is difficult to justify, even making allowance for the plea of guilty by Crisp in the Magistrates Court and the different sentencing regime applicable.  Crisp was the principal offender and the applicant guilty by virtue of the aiding and assisting provisions of

   
   

   s 7 of the Criminal Code Act 1899 (Qld). As the learned sentencing judge said, it would be a rare case in which a person in the applicant’s position would receive a greater sentence than the principal offender.

1. I am inclined to think that the applicant has a justifiable sense of grievance and that there should be some reduction of the term of the probation order.

1. Accordingly I would be inclined to grant leave to appeal to allow the appeal and to substitute for the order admitting the applicant to probation for a period of three years on the terms and conditions outlined in the learned sentencing judge’s order and substitute therefore an order that the applicant be released on probation for a period of 18 months on the same terms and conditions.

1. JONES J: In the District Court at Townsville the applicant was convicted on his own confession of one offence of entering premises and stealing.  The offence occurred at or about 4.30 am on 8 July 2004. 

1. The applicant was admitted to probation for a period of three years and ordered to perform 80 hours of unpaid community service.  By this application he seeks to have the term of probation reduced to 12 months. 

1. The applicant was convicted with another male person who had elected to plead guilty in the Magistrates Court where the penalty imposed was a fine of $600 payable within three months and in default 10 days imprisonment.

1. The circumstances placed before the Court were that it was the co-accused who entered the premises where he was apprehended by police and found to be in possession of a laptop computer and several other items belonging to the occupier of the premises. 

1. The applicant had been approached by the police a short distance from those premises.  To them he denied any knowledge of the co-accused’s entry into the premises but a subsequent check on the mobile phone of the co-accused revealed that the applicant had sent text messages to the co-accused as follows:-

1. 4.40 am          “get the fuck out”

2.5.04 am          “they’re right there dude, find a back exit”

3.5.20 am          “dude, I am at the servo near Shane’s”

1. As defined from submissions on sentence, the applicant fell to be sentenced on the basis that he was aware the co-accused had illegally entered the building and thus the applicant became a party to that offence by adopting the role of a lookout.

1. In mitigation, defence counsel submitted that both men were on their way to a friend’s place after having spent the night watching football and drinking.  Having come upon the broken window the entry into the building by the co-accused was an opportunistic act and the applicant’s action in sending the text messages was done out of misguided loyalty to the accused.

1. The learned sentencing judge noted the fact that three years earlier the applicant and the co-accused had been convicted jointly of an offence of unlawful entry of a motor vehicle and had received identical fines by way of punishment. 

1. The issues for the learned sentencing judge were to make a determination of the relative criminality of the applicant’s action compared with that of the accused and to consider whether adherence to the parity of sentence principle was called for.  That principle is based upon the notion that equal justice requires that like should be treated alike.  As between co-offenders there should not be marked disparity that gives rise to a “justifiable sense of grievance”. Lowe v The Queen[1]; Postiglione v The Queen[2].  In Postiglione, the joint judgment of Dawson and Gaudron JJ goes on to note that “(d)iscrepancy or disparity is not simply a question of the imposition of different sentences for the same offence, rather, it is a questioning of due proportion between those sentence, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality”.  Lowe at p. 301-2. The sentencing court must also take into account not only the appropriate head sentence but also the effect of such matters as one offender’s cooperation with the authorities and the totality principle.

   [1](1984) 154 CLR 606/610

   [2](1996-7) 189 CLR 295/301

1. Here the applicant’s case is more complicated because the co-offender elected summary jurisdiction and pleaded guilty in the Magistrates Court and so his plea of guilty was to be considered under a different sentencing regime. Once the magistrate accepts that the offence could be dealt with summarily, the maximum penalty for the offence in those circumstances was three years imprisonment (Criminal Code s 552H). It was open to the sentencing Magistrate to admit him to probation with or without community service order. The Magistrates Court chose a fine of $600 which by standards in the District Court for a second conviction evasion of a property or motor vehicle may seem to be on the light side.

1. The applicant by electing to stand trial in the District Court exposed himself to a penalty on conviction of a maximum of 14 years imprisonment (Criminal Code s 421).

1. The learned sentencing judge, holding that the applicant was consciously acting as a lookout, was entitled to consider that the level of criminality for each co-offender was similar.  Also the past criminal records of the applicant and the co-offender were identical.  The only distinguishing feature was the fact that one elected to be treated summarily and the other to go to trial.  That procedural choice resulting in the Crown being obliged to bring the case in the District Court has to be acknowledged in the penalty. But in my view less weight should be given to the fact that markedly different maximum penalties result from that choice.

1. In my view, the imposition of the maximum probation term in the circumstances of this case imposed obligations on the applicant which would give rise to a “justifiable sense of grievance”.  In circumstances where the applicant has a good work record and had the prospects of entering an apprenticeship, the need for such long term supervision on probation is not to my mind justified by the circumstances of the offence.  I would in those circumstances reduce the duration of the probation order to 18 months but otherwise not interfere with the orders imposed by the learned sentencing judge.

1. I would agree with the orders proposed by Cullinane J.