R v Derrin

[1994] QCA 345

[1994] QCA 345

COURT OF APPEAL

PINCUS JA DAVIES JA WILLIAMS J

CA No 151 of 1994
THE QUEEN
v.
CARL RONALD DERRIN Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 02/08/94

JUDGMENT was sentenced in the District Court in respect of numerous offences of dishonesty, some details of which are given later. The Judge sentenced him to a number of concurrent terms, the longest being three years' imprisonment and he recommended that the respondent be considered for parole on 31 July 1995. The Attorney-General appeals, asserting that the sentence is too lenient.

The respondent has a substantial criminal history. It may be
convenient to give some details of that history, since the
respondent attained the age of 18 years on 6 January 1973;
prior to that date there were quite a number of offences. If
one concentrates initially on offences of dishonesty after
that date, these have produced sentences of 18 months in 1973,
three years again in 1973, six months in 1985, nine months in
1986, two years in 1988, 12 months in 1989, four years in
1992; I have omitted those offences of dishonesty in respect
of which no term of imprisonment was imposed.

In addition one finds in the record a number of drug offences, the most serious of which appears to be a conviction for supplying heroin which produced an 18 month sentence in 1985. It is pointed out by Mr Barakin who has appeared for the respondent that the respondent is presently attempting to do something about his drug addiction.

The offences with which the Court is presently concerned were in general committed in February, March and April 1993, when the respondent was freed under a work release program. As to most of the offences, the respondent informed the police of them and they were taken into account by the Judge, not being the subject of any charges. In total, there were 27 counts of housebreaking, 35 of stealing and 15 of false pretences.

The way in which the respondent operated was that he used to
break into houses, steal property and take as well items of
identification, the latter being stolen to enable the
respondent to obtain money by pawning other objects which were
stolen. The total value of property taken was said to be

about $70,000.

It appears that the Judge took rather a sympathetic view,
partly because, as explained in a report from the New South
Wales Department of Corrective Services, the respondent had a
disadvantaged childhood. In that report dated 29 April 1992
an officer of the Grafton Correctional Centre suggested that
the respondent, being dependent on drugs, should be subjected to
a drug rehabilitation program.

After noting that the respondent had this background and his cooperation with the police, the primary Judge mentioned that the offences were committed while the respondent was on a work release program, as I have mentioned. His Honour referred to the fact that the respondent was serving sentences imposed in July 1992 and May 1993, his date of release being 22 March 1996.

The criminal history shows that the four-year sentence, which

I have mentioned above, imposed on 31 July 1992, was

JUDGMENT followed by a one-year sentence apparently concurrently imposed on 10 May 1993 for being unlawfully at large and breaching the leave of absence. It should also be mentioned that the four- year sentence imposed in July 1992 had attached to it a recommendation for consideration for parole after serving only six months and it appears from the information before the primary Judge that the respondent served only four and a half months before being let out on work release of which he took advantage in the fashion which has been mentioned.

The prosecutor told the Judge that the release date given,
22 March 1996, was about four months short of the full term;
that is, apart from having committed these offences, the
respondent would have been due for release, if he had served the
whole four years, on 31 July 1996. But, apparently because of
remissions, he would apart from those offences have been

entitled to release on 22 March 1996.

In his remarks on sentence the Judge made reference to the
fact that the parole date which His Honour recommended, that
is 31 July 1995, was short of the present estimated release
date, but remarked that the latter had not taken allowance of

any date for parole in respect of it.

The argument which Mr Byrne QC has submitted on behalf of the Attorney-General, if accepted, would lead to the conclusion that the sentence was light in at least one respect. Mr Byrne says that there is no justification in these circumstances for making the sentence of three years' imprisonment which was JUDGMENT

imposed, that is the longest of the sentences imposed,

concurrent with that which the respondent was then serving.

It is my view that the submission which I have just mentioned
should be accepted. The circumstances were not such as to
give any sound ground for making the sentences for these
offences concurrent with those imposed in respect of the
offences committed in 1990 and 1991 which were the subject of
the sentence imposed in July 1992.

These offences, with which we are presently concerned, were in general committed as I have mentioned early in 1993 although there were two older offences. They were substantially separated in time from those for which a penalty was imposed in 1992 and the circumstances were, of course, significantly different, in that the offences with which we are currently concerned were committed while the respondent was on work release in respect of the 1990 and 1991 offences.

I can see no reason why the Judge should have not imposed a respondent be considered for parole on 31 July 1995. That appears to me, with respect, plainly too lenient. That is only a little over a year from the date on which the sentencing took place and I would, for myself, favour also deferring the recommendation for parole. JUDGMENT

cumulative sentence in respect of these very numerous offences
of dishonesty, particularly having regard to the respondent's
bad record of similar offences. The only substantial reason
which Mr Barakin was able to suggest was that according to the
information before the primary Judge, this respondent was
attempting to do something about his drug problem, by entering a
program which one hopes will improve his prospects.
To return to the head sentence, the Judge imposed a sentence
of three years which was one year shorter than that imposed in
1992. The respondent is entitled to credit, and it appears to
me that credit has to be given, for his cooperation with the
police upon which Mr Barakin has relied. Nevertheless, the
offences were quite numerous and I can see no justification
for giving a shorter sentence, namely three years, for these
offences than was given in 1992.

I would therefore increase the principal sentence which was imposed below, that is, the sentence which His Honour imposed upon the respondent for the housebreaking counts, from three years to four years.

I would also alter the date upon which the respondent is to be considered for parole from 31 July 1995 to 31 July 1996, that is, I would defer it by one year.

Therefore the orders which I would propose to make are as follows:

JUDGMENT

1.    Appeal allowed.

2. Sentences in respect of the two housebreaking counts

varied from three years to four years.

3.    All the sentences imposed below to be cumulative upon

those which the respondent was already serving; and

4.    The date for consideration of parole varied from 31 July

1995 to 31 July 1996.

DAVIES JA: I agree.

WILLIAMS J: I agree.

PINCUS JA: Those will be the orders.

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JUDGMENT