R v Dewey

[1999] QCA 6

99.6

COURT OF APPEAL

DAVIES JA PINCUS JA MACKENZIE J

No 383 of 1998
THE QUEEN
v.

COLIN JAMES DEWEY

BRISBANE
..DATE 03/02/99
030299 T13/JC18 M/T COA3/99

DAVIES JA: I will ask Mr Justice Mackenzie to deliver his reasons first.

MACKENZIE J: This is an application for leave to appeal against sentence of 18 months imprisonment with eligibility for parole after half of that period for an offence of breaking and entering premises and doing wilful damager therein to which the applicant had pleaded guilty.

He was 30 at the time of the offence and had a lengthy criminal record including breaking and entering offences from 1988 to 1993. During those years he had received non- custodial sentences and custodial sentences, the longest of which was three years imposed in 1988 for a series of offences of breaking and entering.

On the occasion to which this application relates a person was interrupted by a security guard while cutting open a safe in commercial premises with an oxyacetylene torch. Only one person was seen by the security guard and that person fled.

The applicant was eventually linked with the offence by the police who traced the oxyacetylene equipment to a hire business from which the applicant had hired it using his own name and identification. Before the police had located him he had tried to convince the company that the equipment had been stolen and pay the company by instalments to recompense it for the loss.

030299 T13/JC18 M/T COA3/99
The person seen by the security guard did not fit the
applicant's description but the applicant initially claimed
that he was the only person involved. Another person was
apprehended in consequence of his fingerprints being found at
the scene and was dealt with by a different Judge about two
months after the applicant.

One of the complaints made by the applicant is that his sentence lacks parity with the other person's sentence. The submission on the applicant's behalf on sentence was that he was approached by the other person to hire the equipment and that he remained in the car outside during the commission of the offence, and he was sentenced on the basis that that was not inconsistent with the Crown case.

I note in passing that that is not easily reconcilable with his outline of argument which seems to imply that he was also in the premises when they were disturbed. However, that discrepancy, if it be one, is not of particular materiality in disposing of the application.

In any event, it was properly conceded by his counsel that a head sentence of 18 months to two years was appropriate. However, it was submitted that because he was caring for his paraplegic brother and a child the sentence should be fully suspended or suspended after a short term in prison.

While hardship caused to dependants because someone is sentenced to imprisonment is to be regretted it cannot ordinarily be allowed to divert a Court from imposing a 030299 T13/JC18 M/T COA3/99

sentence which is otherwise justified having regard to the
nature of the offence.

The applicant's sentence of 18 months without a reduced non- parole period was arrived at on the basis that it represented a reduction, taking into account the applicant's personal circumstances and his plea of guilty from two years which would otherwise have been appropriate. There can be no real complaint about that outcome standing alone.

In his submissions the applicant referred to what he believed was misinformation during sentencing about the delay in bringing the charge against him and about when he had indicated he wanted to plead guilty. He was given credit by the trial Judge for a timely plea of guilty, and if there was uncertainty about the extent of the delay there is no reason to think that he lost any advantage from that.

So far as the parity argument is concerned it is not as clear cut as the applicant has submitted that there is a disparity, because the Judge who sentenced the co-offender was aware of the applicant's sentence and was dealing with the co-offender who was already on parole.

The co-offender was accordingly given a cumulative sentence. That being the case the learned sentencing Judge had to have regard to the overall effect of the total period that the co- offender would be required to serve as a result of the cumulative sentence imposed for offences upon which he was being sentenced, of which the offence for which the applicant 030299 T13/JC18 M/T COA3/99

was sentenced was one.

The co-offender was only 20 but had a criminal history as well. The earliest date for application for parole in his case in consequence of his combination of sentences is 18 April 2001. It is true that his head sentence was 18 months with an extension of his non-parole period of only six months as opposed to nine months non-parole period in the applicant's case but the other factors to which reference has been made as bearing on the level of the co-offender's sentencing make it impossible to successfully argue that there is a lack of parity entitling the applicant to an adjustment of his sentence.

As previously been said, the sentence imposed standing alone is not manifestly excessive. The application for leave to appeal against sentence should be refused.

DAVIES JA: I agree.

PINCUS JA: I agree.

DAVIES JA: The application is refused.

-----