R v Cuthbert

[1992] QCA 184

COURT OF APPEAL [1992] QCA 184

McPHERSON JA
PINCUS JA

THOMAS J

CA NO 261 OF 1991

THE QUEEN

v.

MICHAEL FRANCIS CUTHBERT	Applicant
BRISBANE ... DATE 24/2/92

JUDGMENT
THOMAS J: This is an application for leave to appeal against a
sentence of three years' imprisonment cumulative upon a sentence
of six months' imprisonment which the applicant was already
serving.

The offence for which he was sentenced was one of robbery in company with violence. He was sentenced in the District Court on 13 September 1991, and the occasion of the sentence was a re-sentencing in view of the fact that the applicant had breached probation granted to him when originally dealt with by the same Judge in March 1990.

The co-offender had pleaded guilty to armed robbery and had used a knife but the circumstances placed before the court revealed that the applicant was unaware that a knife was to be used, and the case brought against him (and the charge to which he pleaded guilty) did not involve the use of any weapon.

Accordingly, the circumstances of the offence are, briefly stated, that two young men pursuant to a plan to do so used violence upon a female Japanese tourist and stole her purse. In common parlance it was a bag-snatching case. When first brought before the Court the applicant was granted two years' probation.

His subsequent record reveals a failure to take advantage of that opportunity. He was convicted of unlawful use of a motor vehicle in March 1991. He was brought back before the sentencing Judge with respect to that, but His Honour declined to take further action, being of the view that the matter had been dealt with by the Court that dealt with him on the unlawful user charge.

Soon after, he committed six housebreaking offences and two false pretences. He was sentenced to six months' imprisonment with respect to those matters. Because of those further breaches he was brought back before His Honour for further breaching his probation. His Honour elected to deal with him for the original offence, and the present sentence, the subject of the present proceedings was imposed.

In his favour there is his youth. He was barely 17 years of age when he committed the present offence. At that time he had no previous convictions. He pleaded guilty and spared the complainant the difficulty of remaining in Australia to give evidence.

During the sentencing procedure, submission from counsel both for the Crown and from defence counsel, seemed to suggest that the case of R. v. Gills (1986) 1 QdR 459 required a cumulative sentence to imposed in circumstances of the present kind. It should be understood that Gills makes no such suggestion. The essence of the decision in Gills is that some individual penalty, more than nominal, will normally be called upon for a re-sentencing in circumstances of that kind. It does not imply that where he has recently been sentenced for the offence which constituted the breach of probation, a cumulative sentence is necessary.

It is not clear whether His Honour acted on those particular submissions, but in point of fact His Honour did impose a cumulative sentence of three years.

We have been referred to some comparable decisions of this Court; notably The Queen v. Nolan, CA 145 of 1983, 7 September 1982, and the Queen v. Jackson, CA 41 of 1989, 2 May 1989. In the former case the sentence was one of three years' imprisonment with a recommendation for consideration for parole after one year; in the latter a sentence of two years was considered appropriate. Each was a bag-snatching case and in each the offender was relatively young and had only a minor criminal history. It would seem that the total imprisonment for the offences which brought about the breach of probation and for the present offence was three years and six months. In my view, that is excessive having regard to the circumstances I have detailed. The middle range sentence for the circumstances detailed would seem to be about two years six months. I do not consider that it was necessary or desirable to make the sentence cumulative in the present instance, as adequate additional punishment would be involved in a simple imposition of two years six months' imprisonment speaking from the date of the passing of that sentence.

I would therefore be prepared to grant leave to appeal; allow the appeal; set aside the sentence appealed from; and in lieu thereof, impose a sentence of two years six months, to take effect from the date of sentencing, which was 13 September 1991.

PINCUS JA: I agree, and I would only add that in Gills' case the Court said, of course "He", that is the offence, "must not be punished twice for the latter offence but the reaching of a conclusion that probation is no longer suitable does not infringe that principle". Here, the initial offence was committed when the applicant was 17 years and two weeks of age. He had no previous offences and the offence, although as the Crown rightly said a serious one, was by no means at the top end of seriousness in such cases. In those circumstances I agree with the older which is proposed by my brother Thomas.

McPHERSON JA: The primary submission on behalf of the applicant was that a recommendation for parole at an early stage should be added to the sentence. The fact is that the conviction arose out of an offence committed in 1989, at a time when the applicant was only 17 years old. he has, however, since then demonstrated little indication of his suitability for parole or for a recommendation to that effect. There have been four occasions on which he has breached a probation order or a community service order. In addition the reports of probation officers, or community correctional officers as they are now described, are informally opposed to an extension of thet kind of opportunity. On the other hand, I am left with the overall impression that the aggregate period of imprisonment imposed by His Honour is, speaking comparatively, at the high end of the range even if the offence is one that may not correctly be described as mere bag-snatching. In all the circumstances I agree with the order proposed by my brother Thoams.

PINCUS JA: The order of the Court will be that the application be allowed; that leave to appeal be granted; that the order made by the learned primary Judge be set aside and that in lieu thereof, the applicant be sentenced to two years and six months' imprisonment to take effect from the date of sentencing by Judge Helman, that is the 13th day of September 1991. Thank you.

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