R v Gladstone

[2000] QCA 41

[2000] QCA 41

COURT OF APPEAL

McPHERSON JA
DAVIES JA
WILSON J

CA No 343 of 1999

THE QUEEN

v.

GLADSTONE, Troy  Applicant

BRISBANE

DATE 24/02/2000

JUDGMENT

McPHERSON JA:  Justice Wilson will give the judgment.

WILSON J:  This is an application for leave to appeal against a sentence imposed by a District Court Judge at Southport on 12 October 1999.

The applicant pleaded guilty to the offence of receiving stolen property between 15 and 20 June 1998.  The property consisted principally of CDs worth a few hundred dollars which were recovered.

The sentencing Judge imposed imprisonment of 12 months, saying, "That will be cumulative on the sentences presently being served."  He recommended that the applicant be considered eligible for parole on 18 January 2001.  The applicant submits that the sentence ought to have been 12 months concurrent with other sentences.

He was born on 25 July 1971.  He had a lengthy criminal history in New South Wales and Queensland dating from 1982, when he was aged 11.  He had a drug problem, having used marijuana since the age of 14 and heroin since the age of 17.

On 18 June 1998 he was sentenced in the Magistrates Court at Southport for a Bail Act offence. For this he was fined, in default of payment imprisonment of 10 days.

On 24 June 1998 the same District Court Judge who subsequently dealt with him in October 1999 sentenced him for 12 property offences.  These were committed in three periods.  There was one offence of stealing in January 1997.  In August/September 1997 there were three stealing offences, one receiving offence and three unlawful use of motor vehicle offences.  Then in May/June 1998 there was one offence of breaking and entering, one of robbery with violence in company, one of the unlawful use of a motor vehicle and one of receiving.

On the receiving charges his Honour imposed penalties of one year imprisonment, on the stealing charges three years, on the unlawful use of motor vehicles two and three years, on the break and enter charge three years and on the robbery with violence charge five years.  He recommended that he be eligible for parole after two years.

Subsequently on 14 January 1999 the applicant appeared before the Magistrates Court at Southport when he was sentenced to nine months imprisonment for assault.  That sentence was made cumulative on the other sentences and a fresh date for eligibility for parole was set.

So far as the conduct constituting the charge the subject of the present application is concerned, on 24 June 1998 the applicant had been facing a more serious charge.  It had been indicated that he was prepared to plead guilty to receiving but the Crown would not accept the plea.  Subsequently the charge was changed to receiving and he pleaded guilty.

The principal issue on this application is whether the sentence should have been made cumulative on other sentences.  The offence was committed in the same period as offences for which he was sentenced on 24 June 1998.  It is necessary to look at the totality of the criminal behaviour and determine what is the appropriate sentence for all of the offences.

In Mill (1988) 166 CLR 59 at 62-63 the High Court indicated that where the totality principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing Court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former course is to be preferred.

I would accept the submissions of counsel for the applicant that had he been sentenced on 24 June 1998 this further offence would not have materially affected the term of imprisonment.  He was then sentenced for offences of a like nature committed in the same period.  The most serious offence, the one for which he received five years, was committed in the same period.  Accordingly, in my view, the sentence for this receiving charge ought to have been made concurrent.

There is a question as to what his Honour meant when he said that the sentences were to be cumulative in the circumstances, given the conviction on 14 January 1999 for assault.  However, in my view, that does not affect ultimately the application of the totality principle.  In my view there was an error and accordingly the sentence imposed by his Honour ought to be set aside and it ought to be ordered in lieu thereof that he be imprisoned for a period of 12 months to be served concurrently with the sentences already being served.

There is the further matter of the parole recommendation. As matters stood before this sentence was imposed, the earliest date on which he would have been eligible to apply for parole was 18 December 2000. The sentencing Judge was obliged to make a fresh recommendation under section 157 subsection (3)(a) of the Penalties and Sentences Act, and he fixed the new date as 18 January 2001.

Having regard to the totality principle and recognising that a parole recommendation is part of the overall sentencing decision, I consider that the fresh recommendation ought to have been one that did not alter the period which he would be obliged to serve before being eligible for release on parole.  Accordingly, I would recommend that he be eligible for release on parole on 18 December 2000.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

McPHERSON JA:  The order will be as Justice Wilson has stated.

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