R v Goltz

[2001] QCA 264

[2001] QCA 264

COURT OF APPEAL

McMURDO P
DAVIES JA
THOMAS JA

CA No 53 of 2001

THE QUEEN

v.

LAWRENCE GOLTZ  Applicant

BRISBANE

..DATE 13/07/2001

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 15 February last to a considerable number of offences.

The ones other than the summary offences were one count of assault occasioning bodily harm, one of common assault, one of assault occasioning bodily harm whilst armed, two counts of entering a dwelling and committing an offence, which was stealing, two counts of unlawful use of a motor vehicle and one of stealing.

He was sentenced on the same day to three years' imprisonment with a recommendation for consideration for parole after nine months.  The applicant seeks leave to appeal against that sentence on the ground that it was manifestly excessive.

The applicant was 17 years of age at the time he committed this substantial number of offences and he was 19 by the time of sentence.  He was on bail for commission of other offences at the time of commission of these offences or at least of some of them.

He has a substantial prior criminal history, as the learned sentencing Judge said.  It extends over seven pages.  Most of the criminal history consists of offences of dishonesty, breaking and entering with intent, breaking and entering and stealing and stealing.

There are, however, some offences of violence, assaulting police in 1997, assault occasioning bodily harm in 1999 and assaulting a police officer again in 1999.

He was given various sentences for these previous offences,  initially, of course, community based orders, but he has already undergone two periods of 12 months' detention for his previous criminal conduct.

The circumstances of the current offences are as follows.  The offences of assault which occurred on 25 February 1999 occurred when the complainant left his briefcase at the front door of the Mater Hospital while he parked his car.  He came back and found someone had interfered with it.  The applicant was there.  He said he wanted no trouble and showed the complainant where an item was that had belonged in the bag.

The complainant made a phone call and while he was doing that, he was struck in the right eye with a clenched fist.  That caused discolouration and swelling, the cause of his bodily harm.  The applicant climbed over the fence and remained on the fence.  There was a two metre drop on the other side. 

He took a few more swings at the complainant, resulting in count two, the common assault, before he overbalanced and tumbled down the embankment.  He then climbed over the fence with a chair and started swinging the chair at the complainant causing him further injuries. 

On 30 March 1999 the applicant entered a dwelling by removing louvres and after searching every room stole nearly $10,000 worth of jewellery, none of which was recovered.  He refused to be interviewed but his fingerprints were found at the scene.  Then on 17 April he broke and entered a dwelling and stole over $2,200 worth of property, again none of which was recovered and again he was identified by a fingerprint.

On 31 July 1999 he broke into a vehicle and was a passenger in it when it was intercepted by police and involved in a police chase.  The vehicle was damaged to the extent of over $3,300.  The stealing involved on this occasion involved departing without paying the service station proprietor for petrol which had been put in the vehicle.

On 4 October 1999 the applicant was again a passenger in a stolen vehicle involved in a police chase that ended in the vehicle colliding with a parked car. 

The applicant, through Mr Moynihan today, relies upon a number of factors in support of his submission that the sentence which was imposed was manifestly excessive.  He submits that his youth, 17 years of age at the time of these offences was a significant factor as was the fact that he came from a dysfunctional family and had a poor education.

Also of some relevance is the fact that he pleaded guilty, although it seems plain to the point of demonstration that he did so only after the case against him appeared to be overwhelming.  It was not one of those cases where there was plainly remorse demonstrated or where the applicant involved was involved in circumstances in which he volunteered the commission of some or all of the offences.

The most significant factor relied on by Mr Moynihan on behalf of the applicant is that he spent a period of time in prison for which he would not otherwise get any credit.  He spent a period from 18 April to 31 August 2000, a period of about four months, in custody serving a sentence for a minor offence committed at the same time as these offences and accepted by the learned sentencing Judge, correctly it seems to me, as unlikely to have increased the sentence for the current offences.

He also spent a period of about eight months in custody prior to sentence for unrelated offences, the prosecution of which did not proceed apparently because an essential witness for the prosecution could not be found. 

I would accept Mr Moynihan's submission that at least some credit should be given for these periods although I would not accept that it should be a total period of 12 months and that one consequently ought to do any exact sums on that basis.

Mr Moynihan's submission really also relies on the submission that the range of imprisonment for offences of this kind, having regard to the previous criminal conduct of the applicant, was a period of two to four years imprisonment.  I would not accept that as necessarily correct at all.

In reliance on that submission Mr Moynihan took us through a large number of cases, most of which I'll mention only by name.  They are Harrison CA Number 241 of 1994, 22 August 1994, Kalotai CA Number 277 of 1995, 6 September 1995, Dossi CA Number 95 of 1995, 2 June 1995, Shearer CA Number 130
of 1996, 5 June 1996, Speechley CA Number 510 of 1994,
21 February 1995, Smith CA Number 405 of 1999, 11 April 2000, Ross CA Number 406 of 1999, 29 February 2000 and finally Perrem CA Number 119 of 2000, 18 August 2000 which Mr Moynihan described as the high water mark in these cases. 
Certainly that seems to have been the longer sentence of the cases to which he referred us and whilst it is in my opinion difficult to find comparable cases for such a large number of offences and the similar previous criminal conduct, age and condition of the applicant, it is, I think, useful to make some comparison between that case and this.

In that case the applicant was older, 20 to 21 years of age and that's a point in the applicant's favour here.  He was enrolled in nine breaking, entering stealings, six entering, a number of unlawful uses, three burglaries, in fact a large number of offences, 81 in all.  No, I think 115 in all over a period of 17 months.

He had, however, a limited criminal history unlike the applicant in the present case whose previous criminal history not only is extensive but involved, as I've already mentioned, several terms in detention.  In that case a sentence of six years imprisonment was imposed with a recommendation after two years and three months.  That was upheld on appeal to this Court against the severity of the sentence.  Like the applicant here, Perrem was on bail apparently when he committed some of these offences. 

However, Mr Moynihan does accept that a sentence of four years imprisonment would not have been outside the appropriate range.  That being the case, it seems to me an appropriate allowance being made for the period in custody to which I have referred would not necessarily reduce the overall sentence much below the period of three years imprisonment which was imposed and, given the other factors in his favour, that is his youth and his plea of guilty, the latter really only relevant to the saving which is involved, and the matters which are against him in respect of his previous criminal conduct, I do not think the recommendation of more than nine months was necessarily required.

In those circumstances, I cannot be satisfied that the sentence which was imposed was manifestly excessive and I would refuse the application.

THE PRESIDENT:  I agree with the reasons of Justice Davies. The applicant had an extensive criminal history as a juvenile and committed property offences and offences of assault as an adult.  There was nothing to suggest that he has any particular prospects of rehabilitation.  The applicant's sentence was properly moderated by the trial Judge to take into account the period of time spent in prison prior to his sentence on unrelated matters. 

Although a slightly more lenient sentence would also have been within range, I am far from persuaded that the sentence imposed in this case was manifestly excessive or failed to take into account the moderating factors of the applicant's youth and plea of guilty.  I agree the application should be refused.

THOMAS JA:  I agree with the comments of the other members of the Court and with the order proposed.

THE PRESIDENT:  The order is the application is refused.

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