R v Earnshaw and Hartcher

[1993] QCA 519

IN THE COURT OF APPEAL	[1993] QCA 519
SUPREME COURT OF QUEENSLAND
Brisbane
[R -v- Earnshaw & Hartcher]	No. C.A. 188 of 1993

No. C.A. 195 of 1993

T H E Q U E E N

v.

PHILLIP ANDREW EARNSHAW

MICHAEL JOHN HARTCHER

(Applicants)

The President
Mr. Justice Pincus

Mr. Justice Moynihan

Judgment delivered 14/12/1993

JOINT REASONS FOR JUDGMENT BY PINCUS JA & MOYNIHAN J

SEPARATE DISSENTING REASONS OF THE PRESIDENT

APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:	CRIMINAL LAW - sentence - whether manifestly excessive - series of offences - Burglary - UUMV - factors taken into consideration when sentencing
Counsel:	M Byrne for the Crown P Brown for the applicant Earnshaw K Wenck for the applicant Hartcher
Solicitors:	Director of Prosecutions for the Crown Legal Aid Office for the applicant Earnshaw Legal Aid Office for the applicant Hartcher
Date(s) of
Hearing:	9 August, 1993

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 188 of 1993 C.A. No. 195 of 1993

Before The President
Mr Justice Pincus
Mr Justice Moynihan

[R. v. Earnshaw and Hartcher]

BETWEEN:

T H E Q U E E N
v.
PHILLIP ANDREW EARNSHAW
and MICHAEL JOHN HARTCHER

(Applicants)

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 14/12/93
The applicants have applied for leave to appeal against sentences imposed in the District court on 21 May 1993 after each pleaded guilty that day to a number of offences which took place between 12 June and 27 October 1992.
Hartcher, who committed fewer offences, pleaded guilty to 3 counts of burglary, 1 count of wilful damage, 14 counts of stealing and 2 counts of unlawful use of a motor vehicle, one with a circumstance of aggravation. He was sentenced to imprisonment for 4 years on the burglary charges and two years' imprisonment on the remainder of the charges, to be served concurrently, with a recommendation that he be considered for parole after 18 months.
Earnshaw pleaded guilty to the same charges plus an additional charge of unlawful use with a circumstance of aggravation, a charge of attempted unlawful use, a charge of housebreaking and a charge of breaking and entering with intent.

In addition, he had a further 9 offences of dishonesty, including breaking and entering, stealing and unlawful use, taken into account pursuant to s.189 of the Penalties and Sentences Act. He was sentenced to imprisonment for 6 years on the burglary and housebreaking charges and 2 years imprisonment

on the other charges, to be served concurrently , with no

recommendation with respect to early parole.
As was reflected in the sentences, the most serious offences were the burglaries and, in Earnshaw's case, the housebreaking, which involved the theft of $7,000.00. The burglaries and associated offences related to two occasions on which a woman's home was broken into on the same night; $34,000.00 in cash and property worth $26,000.00 were taken and obscenities were sprayed throughout the house.
Earnshaw, who was born on 16 October 1969, was almost 23 years of age when the offences occurred and previously had committed only two, relatively minor, offences. Hartcher, who was born on 4 March 1974, was 18 years of age when the offences were committed and had no criminal history.
Each also could point to other factors in his favour; for example, study which Earnshaw had undertaken and Hartcher's employment.
For each applicant, it was submitted that his "head sentence" is manifestly excessive, and that the sentencing judge "failed to properly take into account the age, previous good character, the plea of guilty and the applicant's co- operation with the authorities". On behalf of Earnshaw, it was also submitted that the omission to recommend that he be considered early for parole gave rise to an unfair disparity in the sentences.

It is convenient to consider first the applicant Hartcher. It was accepted that a custodial sentence was appropriate notwithstanding subsection 9(4) of the Penalties and Sentences Act 1992 and no other provision of the Act was referred to on behalf of either applicant. Even when imposing a sentence of imprisonment, the Court should give effect to the policy underlying subsection 9(4) which is literally applicable to Hartcher and also to Earnshaw except for the minor offences which he committed some years ago while a very young man. In accordance with the legislative intent which is apparent in subsection 9(4) - and the other provisions of section 9 - no heavier sentence than is essential should be imposed. The sentence of 4 years' imprisonment imposed on Hartcher, which is at the top end of the range for such offences as he committed, manifestly exceeds that base and should be set aside. It would give better effect to the Penalties and Sentences Act if Hartcher's maximum term of imprisonment was reduced to 3 years with a recommendation that he be considered for parole after 12 months. Any longer sentence would fail to give sufficient weight to Hartcher's youth and previous history and his early plea of guilty and co-operation with and assistance to the police.

The considerations which apply in relation to Hartcher are less forceful in relation to Earnshaw who was older, committed more offences and had some prior offences. Nonetheless, there are matters to be taken into account in his favour, including his early plea and his co-operation with and assistance to police, and it would produce an unacceptable disparity between his sentences and Hartcher's if his sentences of six years' imprisonment were left stand. Those sentences should be reduced to imprisonment for 4 years 6 months with a recommendation that he be considered for parole after 1 year 6 months.

Accordingly, the applications for leave to appeal should be granted and the appeals upheld. The sentences of 6 years' imprisonment for Earnshaw and 4 years' imprisonment for Hartcher and the recommendation for parole in respect of Hartcher should be set aside. In lieu, Earnshaw should be sentenced to imprisonment for 4½ years with a recommendation that he be considered for parole after 1 year 6 months and Hartcher should be sentenced to imprisonment for 3 years with a recommendation that he be considered for parole after 1 year.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

No. C.A. 188 of 1993 No. C.A. 195 of 1993

[R -v- Earnshaw & Hartcher]

T H E Q U E E N

v.

PHILLIP ANDREW EARNSHAW

MICHAEL JOHN HARTCHER

(Applicants)

REASONS FOR JUDGMENT - PINCUS JA & MOYNIHAN J

Judgment delivered 14/12/1993

These applications for leave to appeal against sentence arose out of criminal activity in which the applicants engaged between 12 June, 1992 and 26 January, 1993.

The applicant Earnshaw pleaded guilty to the following counts:-

2 counts of unlawful use with circumstance of aggravation;
1 count of unlawful use;
1 count of attempted unlawful use;
14 counts of stealing;
3 counts of burglary;
1 count of house breaking;
1 count of break and enter with intent;

1 count of wilful damage.

The applicant Hartcher pleaded guilty to:-

1 count of unlawful use with a circumstance of aggravation;
1 count of unlawful use;
14 counts of stealing;
3 counts of burglary;
1 count of wilful damage.

The position, in terms of counts on the indictment, in more detail, was as follows:-
Count 1 related to taking a motor vehicle from a car yard. Earnshaw subsequently sold it
in New South Wales.
Counts 2 to 10 related to stealing money and items of value from motor vehicles which
were usually parked outside the homes of the owners.
Counts 11, 12 and 13 are similar to 2 to 10 except a motor vehicle was taken to carry
away some of the goods.
Counts 14 and 15 reflected a house breaking which resulted in $1,200 worth of property
being stolen.
Counts 16, 17, 18 and 19 related to the home and property of a female pensioner. Both

applicants twice broke into the house at night and ransacked it. On the first occasion an unidentified third person was involved. Cash totalling $34,000 was stolen together with property amounting to $26,000. The applicants exhibited an element of malice in that the house was defaced and obscenities were sprayed throughout the house. Some were specific to the occupant.

The applicants were both involved in the commission of the offences so far identified. In addition Hartcher also pleaded guilty to one further stealing from a motor vehicle. Earnshaw in addition pleaded guilty to attempting to take a car from a yard and then breaking into the site office and that (with another person) he broke into a house and stole property amounting to $7,000.

Earnshaw had a further 9 offences taken into account on sentence pursuant to S.189 of the Penalties & Sentences Act 1992. Those offences were three offences of unlawful use of a motor vehicle, one in circumstances of aggravation, two counts of breaking and entering a dwelling house, one of them being a second breaking in relation to the same dwelling house the subject of a count on the indictment, and four offences of stealing.

The applicants were sentenced together. The sentencing judge took into account in the applicants' favour that each had pleaded guilty to an ex officio indictment and had assisted the police in their inquiries. In Earnshaw's case that was in part at least reflected in the list of matters taken into account pursuant to S.189.

In the applicant Hartcher's favour the sentencing judge took into account the fact that he was younger, had no previous convictions and was involved in a lesser number of offences. He specifically stated that he was making no recommendations to early eligibility with respect to Earnshaw.

Earnshaw was born on 16 October, 1969. He had a criminal history of no great consequence, having been convicted of an apparently minor stealing offence in September of 1987 and was fined for an offence of indeterminate category committed in New South Wales, for which he was dealt with in September of 1992. He was sentenced to 6 years imprisonment for the burglary and house breaking offences, and to two years imprisonment for the remaining offences with the terms to be served concurrently. As has been said, there was no recommendation of eligibility for early consideration for parole.

Hartcher was born on 4 March, 1974. He was sentenced to 4 years imprisonment for the burglary offence and two years for the remaining offences with a recommendation of eligibility for consideration for parole after 18 months with the terms to be served concurrently.

It was submitted for each applicant to the effect that the "head sentence" was manifestly

excessive.

It may be accepted that it was appropriate to differentiate between Earnshaw and Hartcher essentially for the reasons identified by the sentencing judge. It may further be accepted that a timely plea of guilty and co-operation with the police should be reflected in a sentence lower than might otherwise have been the case, and that it ought be apparent that this has occurred.

From the point of view of sentencing, perhaps the more serious of the offences are the two counts of burglary and the associated counts with respect to the house which was defaced, as referred to earlier. Those offences, in conjunction with the other offences, the subject of the indictment and, in Earnshaw's case, the offences dealt with pursuant to S. 189, demonstrated concerted criminal activity over a period of some months with a degree of malice exhibited in respect of at least one series of offences.

Earnshaw's sentence is at the top of the appropriate range and might fairly be described as a heavy one. When one bears in mind the nature and extent of his conduct reflected in the sentence, it cannot be said to be manifestly excessive. Nor can the sentencing judge's specific refusal to make a recommendation for consideration for early parole be said in the circumstances to constitute a demonstrable error. Earnshaw's application for leave to appeal against sentence ought therefore to be refused.

By the same token, it has not been demonstrated that Hartcher's sentence is manifestly excessive. It reflects an appropriate differentiation between his and Earnshaw's criminality. Again, it might be described as a heavy sentence but it is not demonstrated to be manifestly excessive. He too should be refused leave to appeal against sentence.