R v Freeman

[2000] QCA 351

[2000] QCA 351

COURT OF APPEAL

McPHERSON JA
THOMAS JA
MOYNIHAN J

CA No 166 of 2000

THE QUEEN

v.

KELLY JOHN FREEMAN  Applicant

BRISBANE

..DATE 24/08/2000

JUDGMENT

THOMAS JA: This is an application for leave to appeal against sentences imposed in the District Court at Southport. The 28-year-old applicant pleaded guilty to 17 offences including seven counts of entering a dwelling house and stealing, two of stealing, three of receiving and five of fraud. In addition, the Court was asked to have regard to 75 further offences pursuant to section 189 subsection (1) of the Penalties and Sentences Act 1992. The total amount of property stolen or received by the applicant was $44,024. The applicant was not in a position to offer or pay compensation.

On the offences of entering and stealing he was sentenced to imprisonment for four years with a recommendation for consideration of parole after 15 months and to shorter concurrent terms on the other offences.  With one exception, all offences were committed over a six-month period between January and July 1999.  The matters that were taken into account under section 189 involved similar conduct between May and December 1999.

The applicant had no criminal history and it was common ground that his offences were committed to obtain money to support a heroin addiction.  Apart from this criminal activity throughout the greater part of 1999 he appears to have a reasonable work record interrupted from time to time by heroin problems followed by attempts to detoxify and methadone programs. 

Further efforts have been made since the present matter surfaced and at the time of sentencing he was on an abstinence program and had been attending for reviews by a medical officer and counsellors as well as participating in a further methadone regime over a period of eight months.
During this period he was back living with his mother.

Having regard to his absence of criminal history and to the above efforts an appropriate sentence should recognise the real prospects of rehabilitation in this case.  Also in the applicant's favour is his considerable cooperation with police including the making of admissions to many offences for which the Crown had no other evidence.  The cooperation enabled many files to be closed and was described as extensive.

All the entering and stealing charges involved the applicant in entering open garages usually attached to premises or dwellings.  In his search for property which he could pawn in order to obtain money for the purchase of heroin he took items which are commonly found in such garages including lawn mowers, fishing rods and various tools.  The receiving counts relate to various stolen property which the applicant received in order to pawn for the same purpose.  Similarly, the fraud counts relate to the actual pawning of various items which he unlawfully obtained.

A difficulty seems to have been occasioned below by the Crown's reliance upon the case of Davidson, CA 210/97,
7 August 1997.  This was advanced as a comparable case and as supporting a sentence of four years with a recommendation after 18 months.  Comparability was said to exist in the property value of goods - namely $30,000 - and by reason of Davidson's quite minor history.  The close coincidence of that sentence and those imposed by his Honour is obvious.  However, it was submitted below and is now conceded here that Davidson is not comparable. 

The operative sentences in Davidson were in respect of offences of burglary predating the 1997 amendments to section 419 of the Criminal Code.  Sentences in other burglary cases were reviewed in Davidson at that time.  Davidson was sentenced for five offences of housebreaking, six of burglary and 11 other counts of stealing and the Court focused attention primarily upon the offences of burglary. 

Since 1997 the term "burglary" includes entering or breaking and entering a dwelling whether by day or by night whereas it formerly was limited to breaking and entering a dwelling by night.  There is now no offence of housebreaking per se which formerly encompassed breaking and entering a dwelling in the daytime.  The former requirement of breaking has been replaced by the creation of a comprehensive offence called burglary with differing sentencing levels depending on the presence or absence of various factors. 

The difficulty in making a comparison between the former cases of burglary and the conduct of which the applicant was guilty in the present matter was not clearly adverted to at first instance.  Neither was the danger in an uncritical transference of sentences for burglary before 1997 to charges of "burglary" which now encompass a wide range of conduct.

It is obvious that the applicant's conduct lacked some of the more serious factors that justify sentences of the level recognised in Davidson including the absence of breaking or the use of implements, the absence of night-time offences and absence of entry into homes where occupants might or might not be confronted.  It was submitted that the offences were more akin to stealing although that in my view unduly minimises the conduct in question.  I note that 50 of the incidents involved entry upon private property followed by stealing.

In the end, counsel for the applicant submitted that the appropriate sentence that should have been imposed on this first offender was two years' imprisonment with a recommendation for parole after six months.  Counsel for the Crown conceded the potential pitfall below in too readily applying allegedly comparable sentences before 1997 in this area.  He also conceded that the head sentence was high for a first offender with some prospect of rehabilitation. 

His ultimate submission was that the sentence which should have been imposed would have been one of three years with a recommendation at 12 months.

In my view the sentences under appeal were manifestly excessive.  Having regard to the absence of previous convictions, the prospect of rehabilitation and the cooperation and plea of the applicant the submissions of counsel for the appellant as to the appropriate level of sentence are realistic and appropriate.  I would accordingly grant the application, allow the appeal and vary the sentences for the offences of entering and stealing to sentences of two years with a recommendation for consideration of parole after six months and by varying sentences on the offences of receiving to one year with a similar recommendation.

McPHERSON JA:  Yes, I agree.

MOYNIHAN J:  So do I.

McPHERSON JA:  The order of the Court will be that the application and appeal are allowed, the sentence is varied as follows.  First, the sentences of imprisonment for four years on counts 8, 9, 10, 14, 17, 18 and 19 are varied by reducing the sentence to one of imprisonment for two years in each case.  Secondly, the sentences of two years' imprisonment on each of counts 1, 7, 3, 5 and 12 are reduced to 12 months' imprisonment.
Thirdly, the recommendation that the applicant be considered for parole is varied by substituting a period of six months in place of 15 months as the period after which the applicant is to be eligible to be considered for parole.

-----