R v Gore

[1993] QCA 62

IN THE COURT OF APPEAL  [1993] QCA 062

SUPREME COURT OF QUEENSLAND            C.A. No. 219 of 1992

T  H  E     Q  U  E  E  N

v.

MARTIN JOSEPH GORE

Applicant

Mr Justice Pincus
  Mr Justice Moynihan
  Mr Justice Ambrose

Judgment delivered 11/03/93

Judgment of the Court

APPEAL GRANTED AND APPEAL ALLOWED TO EXTENT OF ADDING A RECOMMENDATION THAT THE APPLICANT BE ELIGIBLE FOR RELEASE ON PAROLE AFTER HAVING SERVED A PERIOD OF FIVE YEARS IMPRISONMENT.

CATCHWORDS:   CRIMINAL LAW  -  SENTENCE  -  Applicant sentenced to 15 years for inter alia trafficking & armed robbery - whether appropriate for sentences to have been cumulative - whether sentence reflects overall criminality - whether recommendation for early parole ought to have been made.

Counsel:Mr R Collins for the Applicant

Mr M Byrne for the Crown

Solicitors:       Legal Aid Office for the Applicant
             Director of Prosecutions for the Crown

Hearing Date: 07/09/92  

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND          C.A. No. 219 of 1992

Brisbane

Before            Mr Justice Pincus
                  Mr Justice Moynihan
                  Mr Justice Ambrose

[The Queen -v- Michael Joseph Gore]

T H E    Q U E E N

v.

MARTIN JOSEPH GORE

Applicant

REASONS FOR JUDGMENT  -  THE COURT

This is an application for leave to appeal against sentence.
     The applicant pleaded guilty to some 42 criminal offences, the subject of two indictments and was effectively sentenced to 15 years imprisonment. 
     The offences were 1 count of trafficking in the dangerous drugs heroin, cocaine and morphine; 11 counts of supplying dangerous drugs - again heroin, cocaine and morphine; one count of possession of a dangerous drug; 3 counts of receiving; 13 counts of breaking, entering and stealing; 3 counts of breaking and entering with intent; 6 counts of stealing; 2 counts of false pretences; 1 count of housebreaking; 1 count of armed robbery in company and 1 count of deprivation of liberty. 
     The "drug" offences were committed in the period February-May, 1991 and the "dishonesty" offences between 22 July 1991 and 24 April 1992.
     As I have said, the trafficking involved the dangerous drugs heroin, morphine and cocaine.  So far as the record reveals, the learned sentencing judge's remarks that the applicant's trafficking activities involved the supply of heroin, morphine and cocaine on a fairly regular basis were apt.
     The applicant, having been arrested in respect of drug offences, was granted bail on 1 July, 1991, subject to reporting and other conditions.  All but one of the dishonesty offences to which he pleaded guilty were committed while he was on bail.  The total money and property involved in the dishonesty offences was $39,000. 
     The applicant's plea of guilty may be regarded as timely and so far as the dishonesty offences were concerned, represented a degree of co-operation with the authorities in the context of the applicant having been apprehended in respect of the drug offences for which he would in any event undoubtedly be sentenced to a substantial term of imprisonment.
     The applicant was born on 4 March, 1955.  At the time at which he was dealt with by the learned sentencing judge he had a criminal history of convictions for drug and dishonesty offences stretching from 1975 to 1985.  He had been sentenced to probation, to community service and to terms of imprisonment in respect of these offences.
     It is true that the offences, the sentencing for which is the subject of this application, reflected a resumption of criminal activity after a period in which the applicant had functioned fairly effectively in the community.  Nevertheless, having resumed his criminal activity, the applicant might be fairly described as unstinting in its pursuit once he took it up again.  Once resumed the criminal activity culminated in what was the most serious of the offences to which he pleaded guilty - that of armed robbery in company and deprivation of liberty (it is true that there was one subsequent offence but that for present purposes seems to be of little consequence.)
     It is also true that it may be accepted that the applicant's commission of the criminal offences, both those recorded on his criminal history and those the subject of the current application, related to his drug habit.  The learned sentencing judge seems, however, to have been entitled to regard the activities the applicant engaged in as going beyond what was necessary to simply acquire drugs to support his own habit.  The quantities of drugs and money involved and the period over which the activities extended seem to me to justify the sentencing judge's description of the applicant as a not-insignificant dealer in dangerous drugs.
     The sentencing judge, as I have indicated, imposed sentences constructed so as to have the consequence that the applicant has to serve 15 years imprisonment.  He did this by imposing cumulative sentences of 5 years for the trafficking, breaking, entering and stealing and armed robbery in company offences, and imposing lesser sentences of imprisonment for the remaining offences which were to be directed to be served concurrently, with the sentences accumulating to 15 years. 
     The application for leave to appeal was advanced essentially on two bases - first, that 15 years was manifestly excessive in the context of the overall criminality of the appellant's conduct.  Secondly, that the trial judge erred in making the sentence for armed robbery in company cumulative, particularly with the sentence for breaking, entering and stealing.  The effect of the submissions for the applicant was to contend for an outcome requiring the applicant to serve 10 years in prison.  It was submitted that in any event the sentencing judge ought to have recommended that the applicant be eligible to be considered for parole earlier than might otherwise have been the case.
     In constructing the sentencing regime, the subject of this application, the sentencing judge remarked that he thought he could "only properly construct the head sentence" by the use of cumulative sentences and that in doing so, the individual sentences made cumulative would be perhaps somewhat less than they would be if they stood on their own.  It was accepted by counsel for the applicant that the latter aspect had been achieved by the sentences in the present case.
     As I have said, one of the offences for which the applicant was sentenced to 5 years imprisonment was for armed robbery, with the circumstance of aggravation that the applicant was armed with a dangerous weapon, namely a shotgun, and that he was in company.
     It seems that the applicant had made arrangements with an unidentified person to facilitate his entry into the Mooloolaba Hotel where there was a safe which in the event contained some $40,000.  The applicant took with him oxyacetylene equipment to effect entry into the safe and a sawn-off shotgun which was, in the event, unloaded.    The applicant was interrupted in his activities in the hotel by a cleaner.  That it was fortuitous that the cleaner was in the hotel at the particular time seems to be neither here nor there.  Clearly enough, the applicant was armed because he had it in contemplation that he might be interrupted in his endeavours to cut his way into the safe.  The applicant used the shotgun to subdue the cleaner, who was of course not to know that it was not loaded.  He bound and threatened the cleaner, should he endeavour to escape from his bindings before the applicant had time to leave the vicinity.  The applicant left, taking with him some property but not having effected his purpose of breaking into the safe.  This episode involves the commission of offences "more serious and quite different to those in his previous history" to quote a psychologists's report before the sentencing judge.  That and other considerations seem to me to justify the sentencing judge's description of the pattern of the applicant's activities as "getting more serious as they went along and, in many ways, it is fortunate that you were apprehended when you were." 
     In my view the sentencing judge was entitled to view the armed robbery in company as giving rise to considerations separate from those associated with the breaking and entering offences.  The offences for which the applicant was dealt with show persistent criminal activity of an increasingly serious kind, with implications beyond that necessary to support the applicant's own habit, as is evidenced by the trafficking offence.  The individual sentences made cumulative were accepted as being somewhat less than they would be if they stood alone.  The total sentence required to be served by the applicant may at first glance appear to be high, but I am not persuaded that it inappropriately reflects the overall criminality of his conduct.  As I have said, I am not persuaded that the sentencing judge was not entitled to give effect to the armed robbery in company as a separate consideration by making it cumulative with the sentence for breaking, entering and stealing.
     There is, however, more difficulty in upholding the primary judge's view that no recommendation should be made with respect to parole.  In this connection, a number of matters require mention.  A minor one is that the judge declined to take into account, in favour of the applicant, that the weapon he had during the robbery, mentioned above, was not loaded.  The language His Honour used perhaps implies that he did not necessarily accept that story.  However, the fact was stated on the applicant's behalf and not disputed.  Bad as it is to carry an unloaded weapon to assist in a robbery, carrying a loaded one is plainly worse.  Then there is a consideration arising from the fact that this whole series of offences appears to have been brought about by an underlying drug addiction, with which the applicant has struggled for many years.  That is, of course, by no means an excuse for what he has done; but it was said on his behalf and appears to be correct that during his time in prison prior to the offences in question he received no help with a view to overcoming the problem which has devastated his adult life to date.  He plainly needs treatment or at least specific help for his addiction.
     We note also that on the information before the judge, during a period in which he was managing his addiction successfully he was able to establish a successful business of a respectable kind.  The applicant, despite his numerous offences, shows some sign of being other than an irredeemable villain.
     Lastly, as was fairly conceded by Mr Byrne for the respondent, one could scarcely imagine that the applicant would have received a total sentence of any more than 15 years had he pleaded not guilty.  The judge was told, and it was not disputed, that he was entirely co-operative and compiled for the police a list of premises that he had broken and entered.  It does not appear to us that there can be any significant allowance in the judge's sentences for this factor.
     It may be that, particularly if he is given appropriate treatment, the applicant will become suitable for release on parole before he has served half of the term of imprisonment imposed; that would depend, perhaps, largely upon whether the applicant can provide grounds for thinking that he has overcome his drug dependency.  In the whole of the circumstances, we propose to grant the application and allow the appeal to the extent of adding a recommendation that the applicant be eligible for release on parole after having served a period of five years imprisonment.