R v Getawan

[2018] QCA 25

[2018] QCA 25

COURT OF APPEAL

SOFRONOFF P
PHILIPPIDES JA
BODDICE J

CA No 239 of 2017
DC No 461 of 2017

THE QUEEN

v

GETAWAN, Henry Raymond  Applicant

BRISBANE

THURSDAY, 8 MARCH 2018

JUDGMENT

PHILIPPIDES JA:  On 28 July 2017, the applicant was convicted on his plea of one count of receiving tainted property, count 1.  He was convicted after trial of one count of extortion, count 2.  He was sentenced on 4 September 2017 to two years imprisonment on count 1 and 12 months imprisonment on count 2 with a parole eligibility date of 4 September 2017.

The circumstances of the offending may be stated briefly.  The applicant received a stolen laptop computer and other items from other persons.  The following day, he saw the owner of the laptop at her residence, and while in possession of the laptop, sought payment of 100 to 200 dollars for its return, saying words to the effect of, “You’ll not see your property again.  This is your last chance”.  Having not received the money sought, the applicant made off with the property, returning it to the persons from whom he had received it.  The laptop was not returned.

In sentencing the applicant, the sentencing judge took into account the applicant’s personal circumstances – he was 42 years of age at the time of the offences; the nature of the offending, which was observed to fall at the low end of the range of offending; and that it had occurred out of a misguided effort in debt recovery.

The conduct did not involve violence or threats of harm nor any significant planning but was rather opportunistic.  Regard was had to the fact that the applicant has suffered a disadvantaged upbringing and had been subject to abuse and witnessed violence.  He had experienced the breakdown of two significant relationships which coincided with drug and alcohol abuse.  The applicant had been treated for drug induced psychosis and mental health issues.

The applicant’s criminal history commenced when he was 17 years of age and included a history of relevant offending.  There were four entries for dishonesty offences, the last entry being 2014.  A report indicated the applicant was not suitable for community based orders, having contravened those in the past.

The sentencing judge took into account the applicant’s plea on count 1, which, albeit late, warranted some discount, and that the applicant had also reoffended during a period of parole imposed on 10 April 2014.  The applicant also breached bail and was remanded in custody in February 2017, where he remained until sentence.

The applicant abandoned an application for leave to appeal his convictions.  The sole matter before the Court is the application to extend time in which to seek leave to appeal against sentence.  The sentence is sought to be appealed on the basis that it was manifestly excessive.

An application for leave to extend time was filed on 24 October 2017 and is out of time.  The reason given for the delay was that the Registrar did not send relevant forms to the applicant and that he was self-represented.  No documentary evidence is provided to support the contention, and the contention does not appear to be supported by any of the transcript material that had been provided to the Court.

Nevertheless, it is also relevant to consider that the delay is relatively short and whether it has been demonstrated that it would be in the interests of justice to grant the extension of time sought.

The applicant’s argument that the sentence imposed was manifestly excessive is made in the context of submissions that the offending in question was of a low level of seriousness, the previous sentences imposed for like offending in relation to count 1 were much more lenient than that imposed in the present case and that there was a failure to have proper regard to the 220 days that the applicant served in custody, which was not declarable.  The sentencing judge did make a declaration as to 12 days of pre-sentence custody being time already served; that was a correct declaration.

The applicant’s offending is to be considered in the context of his mature years and his past convictions for offences of dishonesty and those of a similar nature.  The offending also was committed while the subject of a parole order, and the submission made by the respondent is that, when the comparatives of Aston-Brien, Hoeksema and Owens are taken into account, the sentence complained of cannot be said to be manifestly excessive.  That submission must be considered in the context that the effective sentence imposed on count 1 was one of two years and seven months.

Aston-Brien concerned convictions after trial of one count of receiving and one count of attempted – entry with intent.  The case at trial was that the appellant had come to the house with the intent of stealing vehicles in the adjoining garage.  The conviction for the attempt was overturned.  In relation to the receiving count, it was held that the sentence of two years imprisonment was not manifestly excessive, and regard was had to the offender’s substantial and relevant criminal history.  He was 46 years of age and suffered from drug addiction.

Hoeksema was sentenced to three years imprisonment with a parole eligibility date set after 18 months, following a conviction after trial of two counts of receiving stolen property.  The applicant, who was 23 at the time of the offending and 24 at trial, was found in possession of property including money soon after two burglary offences had been committed.  The applicant’s criminal history was substantial.  He had been convicted of a number of dishonesty and property offences for which terms of imprisonment had been imposed.  He was, at the time of the relevant offending, the subject of a parole order.  On appeal, it was held that, even having regard to the criminal history and that the offences were committed while on parole and the apparent lack of control, the sentence of three years was found to be manifestly excessive, and it was reduced to two years, parole eligibility after 12 months.

Owens was a case where the offender was sentenced to 18 months imprisonment on a plea of guilty to a single offence of receiving stolen property, being mainly household personal effects and property.  He was a mature man aged 31 years with a dated but similar criminal history.  The Court regarded a sentence of 18 months as being within range.

The respondent argued that the trial judge appropriately reflected the applicant’s 220 days, approximately seven months, in pre-sentence custody, which was not able to be declared, by setting the applicant’s parole eligibility date on 4 September 2017.  That is, 12 months earlier than the statutory halfway point and eight months earlier than one-third of his sentence.  This was said to properly reflect the time spent in custody which could not otherwise be declared.  However, the effective sentence still remains one of two years seven months imprisonment.  It is clear that the sentencing judge did not also take the non-declarable time into account in imposing the head sentence, and the failure to do so has the result that the sentence is manifestly excessive and failed to give proper regard to the period of 220 days that the applicant had already served in custody.

In those circumstances, in my view, the application for extension of time in which to appeal against sentence should be allowed.  The sentence imposed on count 1 should be set aside and in lieu thereof a sentence of 17 months imprisonment should be imposed.  The parole eligibility date should remain set at 4 September 2017.

SOFRONOFF P:  This is an unusual case.  But for the applicant’s criminal history, this case might not have resulted in an order for imprisonment at all, having regard to the relatively low value of the property involved in the offences, but the applicant has a history of offending.  This history involves a succession of minor drug offences, minor assaults and offences of dishonesty, and these, it seems, led him to commit the very serious offence of attempting to pervert the course of justice.

This history also includes previous offending by way of being in possession of tainted property.  I mention this because the applicant is not like the usual applicant who appears in this Court.  Rather, he is evidently a very intelligent and articulate man who could have achieved a great deal.  Instead, since he became a man, he has behaved in a way that has wasted his life, and if the present punishment has no effect upon him, then, although he is really nothing more than a nuisance offender rather than a serious criminal, he will nevertheless spend a great deal of the rest of his life in jail.

I agree with the reasons of Justice Philippides.

BODDICE J:  I agree with the reasons of Justice Philippides and the additional observations of the President.

SOFRONOFF P:  The order of the Court will be as proposed by Justice Philippides.