R v Del Arco

[1994] QCA 70

IN THE COURT OF APPEAL	[1994] QCA 070
SUPREME COURT OF QUEENSLAND

C.A. No. 289 of 1993

Brisbane

[The Queen v. Del Arco]

T H E Q U E E N
v
ENRIQUE MANUEL SYDNEY DEL ARCO

(Applicant)

The Chief Justice Mr Justice Pincus Mr Justice Thomas

Judgment delivered 25/03/1994

Judgment of the Court

1. Application for leave to appeal granted and appeal allowed.

2. Sentences imposed below set aside insofar as it was there

ordered that the terms imposed should be served
cumulatively on sentences already being served.

3. The respective terms of four years and of three months are to remain but they are to be concurrent, that is they will commence from 18 June 1993.

4. There will be added a fresh parole recommendation ordering that the applicant be eligible for consideration for parole on 1 December 1994.

CATCHWORDS: CRIMINAL LAW - SENTENCE - effect of cumulative sentences - concurrent sentences - principles applicable to sentencing co- offenders - principles applicable to sentencing persons already serving a term of imprisonment - fresh recommendation for parole - s157 Penalties and Sentences Act

Counsel: S.E. Herbert Q.C., with him J. Wagner for the

applicant.

P. Feeney for the Crown.
Solicitors: Legal Aid Office (Queensland) for the applicant
Director of Prosecutions for the Crown.
Hearing Date:04/10/1993

JUDGMENT OF THE COURT

Judgment delivered 25/03/1994

The applicant seeks leave to appeal against sentences imposed upon him by a judge of District Courts following his guilty plea to three offences.

On 29 August 1992 by falsely pretending that a cheque was good the applicant fraudulently obtained two replica pistols, on 1 September 1992 he stole with actual violence a sum of money from a person while pretending to be armed with a dangerous weapon, namely a pistol and on 5 September 1992 he stole with actual violence from a different person a sum of money while again in the same manner, pretending to be armed. The pistol referred to in the second and third charges was one of those obtained by the appellant in the circumstances referred to in the first charge.
In each of the two robberies the applicant was involved
with a young co-offender, Fitzgerald
, with whom he had formed a friendship. Unlike his co-offender,
the applicant had some prior criminal history.

On 6 March 1992 the applicant was sentenced before Judge McMurdo of District Courts on six charges of stealing, two charges of unlawful use of motor vehicles, three charges of uttering, two charges of false pretences, one charge of breaking and entering a dwelling house with intent, and two charges of misappropriation of property with a circumstance of aggravation.

These offences appear all to have been committed between August and October of 1991. On each charge Judge McMurdo sentenced the applicant to two years imprisonment but recommended his consideration for parole after serving six months of the terms.

A recommendation was added that whilst in prison and on parole he should receive psychiatric treatment and counselling. In June of 1992 the applicant was also convicted in the Magistrate's Court of offences of breach of the Bail Act and imposition. On each of those charges it was ordered that he be convicted and discharged.

After the sentences imposed upon him by Judge McMurdo on 6 March 1992 the applicant remained in prison for some months but then was released on home detention. For the purpose of serving the sentences imposed upon him in March 1992, the home detention, while it was continuing, would have been regarded as part of the sentences of imprisonment although the terms of the detention allowed him the privilege of leaving home to seek work between the hours of 7 a.m. and 7 p.m. When the dates of the offences with which we are concerned are regarded, it is obvious that he abused that privilege. At the date of the last of the three offences, the robbery on 5 September 1992, the applicant would have reached a stage when he could expect that he might be considered for parole. The recommendation for eligibility after six months made by Judge McMurdo on 6 March 1992 would have entitled him to consideration on and after 5 September 1992.

Following the robberies, because he feared apprehension the applicant left his Brisbane residence and was at large for some three weeks until taken into custody in Sydney. It was accepted that the result of his involvement in the present offences and of his non-observance of the requirements of his home detention was that he had, in practical terms, lost the benefit of the parole recommendation made in March 1992.

It is relevant to state that before being sentenced in March 1992 the applicant had spent five months in custody attributable to the offences then being dealt with and no doubt the judge took that fact into account when in March 1992 she made her recommendation of eligibility after six months.

By the time when on 18 June 1993 the judge below imposed the further sentences with which we are concerned, the applicant had been in custody or its equivalent for the whole of the period since about October 1991 until June 1993 except for about three weeks. On the hearing of the appeal it was accepted by counsel on both sides that in the present case the judge should in response to the requirements of s. 157(3) of the Penalties and Sentences Act have imposed a fresh parole recommendation although he did not do so. It was accepted that in these circumstances this court should repair the deficiency by making an appropriate recommendation.

When the judge on 18 June 1993 passed sentence on the applicant, he imposed on each of the armed robbery charges terms of imprisonment of four years to be cumulative on the sentences which had been imposed on 6 March 1992 and he specifically added that he was making no recommendation for early parole. In respect of the false pretences offence he sentenced the applicant to three months imprisonment. It is obvious that the substantial terms for consideration on this appeal against sentence are the four year cumulative ones.

The facts involved in the three offences should be outlined. The applicant with the co-offender involved in the two robbery offences and another young man went to a store in Elizabeth Street, Brisbane, on 29 August 1992 and purchased two replica pistols which the applicant paid for by cheque. That cheque was dishonoured. On the same night a party was held in a room booked at a Brisbane motel, guests were invited and food and drink ordered through room service. Again the applicant paid by cheque and it was also dishonoured. By the following week the motel was pressing for payment and the applicant and his co-offender, after discussing the matter together decided to carry out a robbery in a shop to obtain the necessary funds. Although the applicant did not enter either of the two shops where the offences were subsequently carried out he encouraged his co-offender and assisted him by providing a hooded parka, sunglasses, and one of the replica hand guns. On the first occasion the co-offender went on foot to the shop, entered wearing the items he had been given, produced the replica pistol and demanded money which was produced. The co-offender who was at that time residing with the applicant and the applicant's mother then ran back to that address. The proceeds of the robbery on this occasion were some $495.

In discussions which followed, the applicant sought to borrow from his co-offender some of the proceeds which had been obtained and this was agreed to, but there remained a need to find further money to pay the full indebtedness to the motel. The two decided to carry out another robbery but they considered they needed to obtain a car which they could use for that purpose. Eventually they managed to obtain access to a friend's car and on 5 September 1992 the applicant and his co-offender drove around looking for a suitable shop where a robbery could be carried out. A shop was located and they agreed on a plan under which the applicant would drive the car, drop off his co- offender in the vicinity of the shop and then park on the other side of some nearby school grounds at a point where the co- offender could be picked up to make his escape after the robbery had been carried out.

The agreed plan was put into operation. Again a replica gun was produced by the co-offender and money was taken from the shopkeeper and placed in a bag. The intended plan failed because other persons observed what was going on and the co- offender was followed. The result was that the applicant was disturbed and drove off without the co-offender. However, the car's registration number had been noted. On this occasion the police were able to intervene promptly and the co-offender was apprehended. The applicant facing apprehension left his address and as has already been said, was at large until he was eventually located in Sydney some three weeks later. In the second robbery $74 was obtained.

The salient facts amongst those which have just been outlined were recited by the judge below in his sentencing remarks. He made it clear that he did not regard the applicant's absence from the scene when the robberies were carried out as indicating any lesser involvement on his part than the co-offender's. The Crown made no submission to this court that one offender should be regarded as less involved than the other in the events of the two robberies. However, the Crown made the point that the circumstances of the two offenders were different and this appears to have been the basis on which the judge below sentenced.

The co-offender was aged only seventeen when the offences occurred and he had no previous convictions. The applicant was somewhat older, being aged twenty-one, and he already had a significant criminal history. Further, in involving himself as he did in this criminal activity, he was in blatant breach of the terms of his home detention. Counsel for the applicant for his part recognised these points of distinction but submitted that nevertheless there was too great a disparity in the way in which the two offenders were treated and said that within the principle enunciated in Lowe v. The Queen (1984) 154 CLR 606 the court's interference in a substantial way was justified quite apart from the necessity to remedy the deficiency in the sentencing order to make it conform with the requirements of s. 157(3) of the Penalties and Sentences Act 1992. Whereas the co- offender who had already been sentenced had been placed on probation for three years and ordered to perform 200 hours of community service, the applicant was as already mentioned, sentenced to four year terms of imprisonment to be served cumulatively upon sentences he was already serving.

There does not appear to be any reason to doubt that the terms of imprisonment referred to were deliberately imposed upon the applicant after careful consideration. The judge clearly believed the difference in the treatment of the two offenders to be appropriate. He noted the particular vulnerability to robberies of persons conducting businesses and he correctly observed that sentences imposed for such offences must reflect the community's strong disapproval of criminal behaviour of this kind. He said that in a number of cases where there are very young offenders involved with no significant criminal history and perhaps other extenuating circumstances, non-custodial sentences have been imposed and the co-offender fell into this category but the applicant did not. The question nevertheless remains whether there is an unjustifiable disparity between the sentences imposed on the two offenders calling for some reduction to be made in the applicant's case.

In passing sentence the judge referred to some remarks made by Badgery-Parker J. in The Queen v. Moffitt (1990) 20 NSWLR 114 at 128 suggesting that the almost invariable rule where offenders take advantage of their liberty while on bail to commit further crimes is that the further offences should attract sentences which are made cumulative upon those for which the offender was on bail and that similar considerations should apply when an offender takes improper advantage of his liberty on parole to commit further offences which then call for significant additional punishment to reflect the gravity involved in the abuse of parole. It may be going too far to say this represents the almost invariable rule in this State but there is no doubt that the judge below considered that he was applying this approach when he ordered that the sentences imposed for robbery should be cumulative. However, the sentencing discretion is not rigidly confined and while it may be accepted that the abuse of the terms of the home detention in this case added significantly to the seriousness of the matter, the effect of any cumulative term can, in the particular circumstances of a case, unless closely scrutinised, introduce some injustice. The court in The Queen v. Clements (C.A. 279/1972, Court of Appeal 25/06/1993 unreported), devoted some attention to the way in which cumulative terms can sometimes produce an unduly harsh result. It is necessary to look more closely at the exact situation of the applicant here.

The sentences imposed upon the applicant in March of 1992
were substantial considering that he was then a first offender.
Although the offences were serious and there were a number of
them, they were committed over a confined period of a few months
by a young man then twenty years old. No doubt the judge on
that occasion took into account the applicant's five months in
prior custody when she sentenced him on 6 March 1992. The
result of her recommendation that the applicant serve a further
six months before being eligible for parole consideration meant,
as has already been observed, that he could have had his parole
considered as early as September 1992. Because he abused the
privilege involved in home detention by committing further
offences for which he then had to be sentenced again before the
court, he lost the benefit of his recommendation and in a
practical sense therefore lost all opportunity for parole prior
to the time he was again before the court for sentence in June
1993. At that date the applicant had already spent one year and
eight or nine months in custody. In terms of the provisions of
s. 158 and 161 of the Penalties and Sentences Act 1992 none of
that time could be regarded strictly as time spent in custody in
relation to the further offences "and for no other reason" (that
being the phrase used in both of those sections). The time in
custody after September 1992 when the applicant was apprehended
in Sydney can be viewed as resulting from the sentences imposed
in March of 1992 and from the fact that an opportunity for
parole had been lost.
When the second batch of sentences was imposed in June of 1993 it is clear that the judge then intended that the applicant should, so far as the court's orders were concerned, serve the whole of the period of the prior two year sentences from March 1992 that is for the further period up until March 1994 before the cumulative terms of four years which he was imposing would commence to run. That is, the intention was that the applicant should be ordered to serve a further four and three-quarter years from June 1993.

One submission made for the applicant was that although it would have been appropriate for the judge in June 1993 to impose cumulative sentences of some length, the ones actually imposed were excessive in their effect and that a more appropriate way for the court to have proceeded in this case was to have imposed sentences of perhaps the same length as those actually imposed but order that they should be concurrent with the original sentences. There is merit in this contention. The conclusion should be reached that the sentences actually imposed were excessive. To have imposed four year concurrent terms would have signalled sufficiently clearly that additional penalties were being imposed for the further serious offences committed by one who although still youthful was not a first offender. Concurrent four year terms would commence in June 1993 and their practical effect would be a further three years and three months to serve on top of the sentences imposed for the first batch of offences.

In all of the circumstances, keeping in mind the contents of the report of the clinical psychologist, Mr Kerr, indicating a level of immaturity in the applicant and also his youthfulness, twenty-one when these offences were committed, the desirability of some relationship although not a close relationship between the level of sentences imposed upon the two co-offenders conceding their different circumstances and the long time the applicant will have spent in custody since October 1991 it seems appropriate to make an order fixing eligibility for parole at a point towards the end of this year. The beginning of December 1994 seems a suitable point to select.

It was conceded by both sides in argument before us that a "fresh" recommendation for parole should have been made by the sentencing judge below even though he omitted to order it. Notwithstanding some ambiguities in the drafting of s. 157 of the Penalties and Sentences Act 1992 where an offender is still serving a term of imprisonment and a recommendation for parole has been made which is applicable to it and he comes to be sentenced again by a court of like or of higher jurisdiction, then by subs.(3) a fresh recommendation must be made and by subs.(5) that fresh recommendation will revoke previous recommendations and will start on the day it is made.

The application for leave to appeal should be granted and the sentences imposed below set aside insofar as it was there ordered that the terms imposed should be served cumulatively on sentences already being served. The respective terms of four years and of three months should remain but it should be ordered that they be concurrent, that is they will commence from 18 June 1993. There will be added a fresh parole recommendation ordering that the applicant be eligible for consideration for parole on 1 December 1994.