R v Henderson

[2005] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:	R v Henderson [2005] QCA 165
PARTIES:	R v HENDERSON, Leon David (applicant)
FILE NO/S:	CA No 73 of 2005 DC No 2713 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	16 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2005
JUDGES:	McMurdo P, Jerrard JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant convicted after pleas of guilty to two counts of break, enter and steal – where offences committed during operational period of four month suspended sentence for possession of tainted property – where ordered to serve whole of suspended sentence – where sentenced to two years imprisonment suspended after five months with a three year operational period to commence at end of suspended sentence – where ordered to pay compensation of $7,965.84 – where first offence committed within six days of receiving suspended sentence – where extensive criminal history primarily for offences of dishonesty – where initial denial of any involvement when interviewed by police – where plea of guilty entered on day of trial – where realistic offer of future compensation – whether sentence manifestly excessive
COUNSEL:	The applicant appeared on his own behalf C W Heaton for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant, Leon Henderson, pleaded guilty to two counts of break, enter and steal in the District Court at Brisbane on the 25th of February 2005.  These offences were committed during the operational period of a four month suspended sentence.  The judge dealt with Henderson for that breach and ordered he serve the whole of the four month period of imprisonment.  Henderson was additionally sentenced to two years imprisonment suspended after five months with a three year operational period to commence at the expiration of the four month sentence.  He was also ordered to pay the compensation of $7,965.84 in default four months imprisonment.
The effect of the sentences imposed is that he will serve nine months imprisonment before release on a further suspended sentence and, in addition, he will have to pay substantial compensation.

The applicant has a lengthy criminal history primarily for offences of dishonesty, commencing when he was a teenager in March 1989, with convictions and fines for stealing.  Later that year, he was sentenced to an effective term of three months imprisonment for unlawful use of a motor vehicle, stealing, possession of property suspected of being unlawfully obtained and possession of dangerous drugs and related offences.  In October 1989, he was placed on three years probation for offences of receiving, burglary, possession of a dangerous drug and stealing.  He was convicted of further drug and property offences in 1990.  He was dealt with for breach of probation and was sentenced to an effective term of 21 months imprisonment.  In 1990 and 1991, he was convicted and fined for an assault occasioning bodily harm and street offences. 

To his credit, he was not convicted of any other offences for over 10 years, but his record was blemished again on the 22nd of August 2001, when he was sentenced to five months imprisonment to be served by way of an intensive correction order with restitution of $6,300, for two counts of unlawful use of a motor vehicle and one count of dangerous operation of a vehicle.  In November 2001, he was convicted of possession of property suspected of being tainted and fraud.  These offences were committed prior to the last mentioned offences and he was sentenced to two months cumulative imprisonment.  In September 2003, he was convicted of breaching his intensive correction order and fined.  On the 2nd of February 2004, he was convicted of possessing tainted property and sentenced to four months imprisonment, suspended for two years with an order that he pay restitution of $2,070 within six months, in default two months imprisonment.  He has now been ordered to serve that four months imprisonment for committing the break and enter offences the subject of this application during the operational period.

The first count of break, enter and steal that immediately concerns this Court occurred as follows.  On the 8th of February 2004, mere days after Henderson's court appearance resulting in a suspended sentence, the manager of Ausbuild Pty Ltd was called to a house he was constructing at Redland Bay.  He found that glass louvres and a kitchen window were removed, the wall oven smashed and lying on the kitchen floor, the sink removed and water gushing out, and the stove hotplates missing.  The carpets and skirting boards were soaked with water.  The missing property and damage to the premises totalled $7,232.84.  Henderson's fingerprints were found in the sink bowl.

The second count of break, enter and steal concerned nearby premises.  On 1 April 2004, a neighbour noticed a white Mitsubishi L300 Express van stopped at a house under construction.  He saw a person leave the van and enter the house site.  He became suspicious and phoned police.  He later saw the person leave the house site with what appeared to be a brand new hotplate still wrapped in plastic.  The person drove off but the neighbour took his number plate.  A range hood and hotplate were missing.  Police made inquiries at the address to which the vehicle was registered, where they spoke to Henderson's father who gave them Henderson's address.  When police attended at that address they found Henderson in the Mitsubishi van with the registration plate seen by the neighbour, and wearing clothes similar to those the neighbour described as being worn by the suspect.  The hotplate and range hood were valued at $733 and were not recovered.  Henderson was interviewed by police but denied any involvement with the first offence.  He tried to explain his presence at the second house, claiming that he was interested in purchasing it. 

He pleaded guilty on the day of trial.  Henderson was 35 at sentence and unemployed.  He had been in a motor vehicle accident in February 2001 and was optimistic that he would receive an award in respect of that accident, which would enable him to pay compensation to the victims of the break, enter and steal offences.  As a result of his car accident, he has a 10 to 15 per cent disability to his spine, which has affected his ability to work in his career as a tiler.  He is in a relationship with a woman who has three children of her own and, at sentence, she was pregnant with their child, then due in about six weeks.

Henderson's counsel at sentence did not contend that it would be unjust to order Henderson to serve the whole of the suspended imprisonment imposed on 2 February 2004. See s 147, Penalties and Sentences Act 1992 (Qld). He submitted that if a cumulative sentence was imposed for the latest offences, it should be moderate to recognise the early plea of guilty and the genuine and realistic offer of compensation and that the period of imprisonment should be suspended earlier than otherwise to recognise those factors.

Henderson, who appears for himself on this application, contended in his written submissions that the learned trial judge erred in thinking that he could not impose concurrent sentences for committing an offence during the operational period of a suspended sentence and for the break, enter and steal offences.  He now concedes, however, that, having read the transcript, this does not appear to be so.  He emphasises that his partner has just given birth to their first child and has three other children aged between six and nine years; she is suffering because of his stupidity.  He tells us that he committed these offences when he was abusing alcohol and was depressed following the death of his mother.  He asks the Court to release him as soon as possible to assist his partner and to enable him to pay the compensation, which, he says, he is now able to pay upon his release because the personal injuries claim has been settled in his favour.

As Henderson now concedes, there is nothing in the transcript of the sentencing proceeding to suggest that his Honour's discretion miscarried because his Honour wrongly thought he was obliged to impose a cumulative sentence.  Clearly the learned sentencing judge decided that a cumulative sentence was appropriate because Henderson committed further offences during the operational period of a suspended sentence and the circumstances warranted it.  The only issue for this Court then is whether the effective sentence imposed was manifestly excessive. 

Henderson is a mature man, who committed two very serious offences of break, enter and steal.  Offences of this type seem to be prevalent and certainly warrant the imposition of a salutary deterrent sentence.  He has an extensive criminal history and he committed the offences during the operational period of a suspended sentence for another offence of dishonesty.  He pleaded guilty on the day the matter was listed for trial.  He must get some credit for this mitigating factor but the case was not one where there was extensive cooperation with the administration of justice.  Fortunately, he is able to make a realistic offer of future compensation.

Even taking into account the mitigating factors of the late plea of guilty and the offer of an order for compensation, the sentences imposed, for committing offences during the operational period of the suspended sentence imposed on 2 February 2004 and for the subsequent offences of break, enter and steal, were not manifestly excessive.  I would refuse the application for leave to appeal against sentence.

JERRARD JA:  I agree.

MULLINS J:  I agree.

THE PRESIDENT:  The application is refused.

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