R v Heath and Heath

[1995] QCA 170

IN THE COURT OF APPEAL [1995] QCA 170

SUPREME COURT OF QUEENSLAND
Brisbane

C.A. No. 97 of 1995 C.A. No. 98 of 1995

[R. v. Heath & Anor]

T H E Q U E E N

v.

BARRY PHILLIP HEATH and

MICHAEL JOHN HEATH

Applicants

Pincus JA.
Moynihan J.

Ambrose J.

Judgment delivered 12/05/1995

Separate reasons for judgment of each member of the Court, all

c oncurring as to the orders to be made.

1. Application for leave to appeal against sentences allowed.
Both sentences are set aside.
2. With respect to Barry Phillip Heath, the Court imposes a
sentence of two years imprisonment with a recommendation of
eligibility for parole after serving six months of that
sentence.
3. With respect to Michael John Heath, the Court imposes a
sentence of three years imprisonment with a recommendation of
eligibility for parole after serving 12 months of that sentence.

CATCHWORDS: SENTENCE APPEAL - contended that sentence was manifestly excessive - charge of breaking and entering with intent to commit an indictable offence therein - sentence imposed was 4 years imprisonment with eligibility for parole after 15 months for B.P. Heath and 4 years imprisonment with eligibility for parole after 18 months for M.J. Heath - each applicant had a criminal history of committing offences of dishonesty - early plea of guilty - opportunistic offence.

Counsel:	Mr H.W. Jones for the applicant B.P. Heath Mr S. Hamlyn-Harris for the applicant M.J. Heath
Solicitors:	Legal Aid Office for both applicants Director of Public Prosecutions for the respondent

Hearing date: 28 April 1995
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12/05/1995

I have had the advantage of reading the reasons for
judgment of Ambrose J with which I am in substantial agreement.
It seems to me clear enough that the sentence imposed on Barry
Phillip Heath was excessive. As Ambrose J points out, it was
not part of the Crown case that the offence ought to be viewed
other than as standing in isolation from any other intended or
contemplated criminal activity except to steal clothing from a
"Life Line" clothes bin, if one could be found. Barry Phillip
Heath was 25 years old when he committed the offence and had
never been sent to prison. His criminal record is not very
extensive and the offence for which he was sentenced on this
occasion was not, in the way the matter was presented to the
Court below, a particularly heinous one. In those circumstances
a sentence of 4 years imprisonment, as a first prison sentence,

must be regarded as excessive, both absolutely and in comparison

with the sentence imposed upon Michael John Health.

The correctness of the latter sentence is perhaps more arguable; Michael John Heath is eight years older than his brother and has a more substantial criminal record; but on consideration of the whole circumstances, I am of opinion that he too should have his sentence reduced. I agree with the orders proposed by Ambrose J.

R EASONS FOR JUDGMENT - AMBROSE J.

Judgment Delivered: 12/05/1995

These are applications for leave to appeal against sentences imposed upon the applicants who pleaded guilty in the District Court at Maroochydore to a charge of breaking and entering business premises at Caloundra with intent to commit an indictable offence therein.

Barry Phillip Heath was sentenced to imprisonment for a period of four years and it was recommended that he be considered for parole after serving 15 months of that sentence.

Michael John Heath was also sentenced to imprisonment for four years and it was recommended that he be eligible for parole after serving 18 months of that sentence.
Each of the applicants had a criminal history of committing offences of dishonesty although the history of Michael John Heath was the more serious of the two.
Each of the applicants contends that the sentence imposed on him was manifestly excessive.
Barry Phillip Heath contends that the sentence which ought to have been imposed was imprisonment for six months fully suspended for a period of 2 years.
Michael John Heath contends that the sentence which should have been imposed upon him was a sentence of imprisonment for two years suspended after three months for an operative period of three years.
For the Crown it is contended that while each of the sentences was at the high end of an appropriate range the recommendations for early parole made in each case result in the sentences not being manifestly excessive.

It is convenient to state briefly the basis upon which the applicants were sentenced. At about 10 p.m. on 5 September 1994 the applicants together broke into a manufacturing business in an industrial estate at Caloundra. Entry was gained by removing a mesh grill and then opening a window. A quantity of tools and stereo equipment was collected into a pile near a doorway in preparation for its removal to a car in which the applicants had travelled to the premises and left parked outside.

Before they were ready to leave the premises with the goods they had collected the applicants were disturbed by a police patrol and fled the premises on foot. Barry Phillip Heath was caught and was at that time wearing gloves and carrying a torch and a screw driver. Michael John Heath escaped but was recognised and apprehended the next day by the police officer, who had caught Barry Phillip Heath.

Both applicants after some initial prevarication fully co- operated with the police and gave records of interview. Each indicated at an early stage that he proposed to plead guilty and each in fact did plead guilty to what was in effect an ex officio indictment presented on 1 March 1995.
All the property collected by the applicants for removal from the business premises was abandoned by the applicants when they fled the business premises upon arrival of the police patrol. There is no evidence as to the value of this material.
The version of events presented to the Court by counsel for the applicants (who are brothers) was that they had been consuming alcohol together for some time at the residence of Michael John Heath when they decided to look for a "Lifeline" bin and take some clothes from it. They were unable to find a bin but decided upon impulse as they drove past the business premises, the subject of the charge, to break and enter them and see what they could take.

It is common ground between the applicants and the respondent that in determining whether the sentences imposed were manifestly excessive it is necessary to have regard to the criminal history of each.

Barry Phillip Heath was 25 years of age at the time of the offence. His mother died when he was three years of age and he was brought up by an aunt and uncle. His entire schooling was obtained in opportunity schools. He is illiterate.

In 1987 he was convicted of wilful and unlawful damage to property and other less serious offences. He was fined and pursuant to a fine option order performed community service. Subsequently he was convicted of other offences for breach of the Bail Act and was also fined and took advantage of a fine option order to perform community service.
In June 1991 he was convicted of breaking, entering and

stealing (with another). At that stage he was 22 years of age.

He was granted probation for a period of two years.

In September 1993 he was convicted in the Magistrates Court at Beenleigh upon two counts of stealing and one count of breaking, entering and stealing. On all charges he was fined and pursuant to a fine option order performed community service work in lieu of paying the fine. Restitution orders of $155 were made.
Michael John Heath at the time of offence was 33 years of age. He had a permanent relationship with a woman and was the father of two children at the time of sentence. A third child was expected within a few weeks.

In March 1980 he was convicted of the unlawful use of a motor vehicle (three charges) and on each charge was granted probation for a period of three years and a restitution order was made.

In June 1984 he was convicted of being in possession of property suspected of being stolen and of stealing (with another). He was fined on each of those offences.

In September 1984 he was convicted upon 11 charges of stealing (with another). On each charge he was fined.
In June 1985 he was convicted of stealing as a servant and again was put on probation for three years and a community service order for 240 hours was made.
In March 1988 he was convicted of breaking and entering a club house with intent and was fined.
On 11 October 1988 he was convicted of breach of the probation order made in June 1985. The order was set aside and he was imprisoned for two months for the stealing offence.
In May 1991 he was convicted of attempted stealing (with others) and a community service order was made for 240 hours.
In September 1992 he was convicted upon two charges of stealing, together involving a sum in excess of $5,000. On each charge he was sentenced to imprisonment for 12 months to be served concurrently.
In the course of his sentencing remarks, the learned sentencing Judge observed:

"Although I was invited to make an order for a suspended sentence, in this case I do not consider it an appropriate punishment option. I have to mark the community's disapproval of this type of offence. I have to seek to deter each of you from a repetition of this misconduct. In view of your history, although acknowledging that there is a difference between the two, I must impose a stern sentence in the hope of achieving that deterrence. Of course, in part, I am also seeking to deter others who are minded to commit an offence of this type."

In the course of his sentencing remarks his Honour said that he took into account the financial savings that had accrued to the State from the applicants' pleas of guilty and that would be reflected in the recommendations he made for eligibility for parole at an earlier time than would otherwise have been the case.

Counsel for Barry Phillip Heath referred to the sentences imposed in the following cases and what was said about them in the Court of Appeal to support his contention that the sentence imposed upon him was manifestly excessive -

Rampal C.A. No. 118 of 1993. Tomlin C.A. No. 121 of 1992. Nguyen C.A. No. 229 of 1992. R.v. Simmins, Shanahan J, District Court Brisbane,

30/9/1994.
Counsel for Michael John Heath referred to the following cases to support his contention that the sentence imposed on his client was manifestly excessive -

Gabriel C.A. No. 149 of 1990.
Allston C.A. No. 5 of 1992.
Hatfield C.A. No. 48 of 1992.
Lee C.A. No. 47 of 1992.
Scott C.A. No. 280 of 1993.

Counsel for the Crown referred to the following cases

commenting that "whilst not truly comparable, may assist in

identifying an appropriate range".

Allston (supra), Jamieson and Pascoe C.A. No. 274, 266 of

1992.

Harrison C.A. No. 241 of 1994.
Story C.A. No. 9 of 1993.
Bell C.A. No. 6 of 1991.
In my view, limited assistance can be derived from

considering cases where applicants unsuccessfully seek leave to appeal or appeal against a sentence imposed. The failure of an application or appeal of course indicates merely that the sentence imposed was not manifestly excessive in the circumstances. The circumstances in the cases are variable. The refusal of the application does not indicate that the sentence involved was the maximum appropriate in the particular circumstances of that case.

In my view, having regard to the criminal history of each applicant it was open to the learned sentencing judge to decline to suspend wholly or partly sentences of imprisonment appropriate in the circumstances of the case.
Each of the applicants had had the advantage of community based orders of probation and community service which had not deterred each from committing the property offence to which each pleaded guilty. It is my view, however, that the sentence of four years imprisonment imposed upon each of the applicants was beyond the range of appropriate sentence having regard to the circumstances of the case viewed in the light of the criminal history of each applicant.

Barry Phillip Heath had not previously been imprisoned. He was 25 years of age and the basis upon which he was sentenced was that he was guilty of an opportunistic offence which he committed with his brother after unsuccessfully searching for a "Lifeline" clothes bin to steal from. Perhaps the fact that he was apprehended wearing gloves and carrying a torch and screw driver suggests the possibility of a professional approach to stealing from the business premises by both applicants. There was some suggestion initially by Barry Phillip Heath that the offence to which the applicants pleaded guilty was merely the first of a number of planned offences. For reasons which it is unnecessary to examine however, it was not part of the Crown case that the offence ought be viewed other than as standing in isolation from any other intended or contemplated criminal activity, except to steal clothing from a "Lifeline" clothes bin, if one could be found.

Had the Crown case permitted sentences to be imposed upon the basis that the applicants had agreed to commit a series of break and enter offences in the Caloundra region and that this intention had been thwarted by their being apprehended as they were still involved in committing the first offence then the sentences of four years imposed upon each of the applicants would arguably have been within the appropriate range.

That however was not the basis upon which the applicants were sentenced. In my view, each of the sentences of four years is manifestly excessive, having regard to the circumstances in which the offences were committed and the criminal histories of the applicants. I would grant each of the applicants leave to appeal against the sentence imposed upon him. I would set aside each sentence.
Each of the applicants has a significant criminal history.
It is desirable that recommendations for early eligibility for
parole reflect adequately the advantage to be derived by persons
who enter an early plea with resultant saving of time and costs.
Upon Barry Phillip Heath I would impose a sentence of two
years imprisonment and recommend that he be eligible for parole
after serving six months of that sentence.

With respect to Michael John Heath I would impose a sentence of three years imprisonment and recommend that he be eligible for parole after serving 12 months of that sentence.

REASONS FOR JUDGMENT - MOYNIHAN J
Judgment delivered 12/5/95

I agree with the reasons which have been prepared in this matter by Ambrose J and with the orders he proposes. I also agree with the reasons prepared by Pincus JA.