R v Heyden

[1995] QCA 462

[1995] QCA 462

COURT OF APPEAL

DAVIES JA
THOMAS J
FRYBERG J

CA No 272 of 1995

THE QUEEN

v.

ANTHONY DALE HEYDEN

BRISBANE

..DATE 22/08/95

JUDGMENT

DAVIES JA:  The applicant was convicted in a Magistrates Court on his own plea on 20 June this year of two offences; possession of tainted property on 8 December last year and two counts of possession of dangerous drugs on 27 January this year.  The notice of application of leave to appeal sought leave to appeal against the sentences which were imposed in respect of each of those offences which were respectively four months imprisonment with a recommendation for parole after serving three months and one month imprisonment in both cases although concurrently with each other cumulative upon a sentence imposed in the Southport District Court on 31 March 1995. 

However, it was accepted by Mr Hamlyn-Harris who appeared for the applicant that only the second of those sentence appeals is competent in this Court, that is a sentence of one month imprisonment cumulative ;upon that imposed in the Southport District Court on 31 March this year.  The circumstances of the offences in the present case were that on 27 January this year police conducted a search of premises where the applicant was residing.

Two grams of cannabis were found in a bowl at those premises, and when the applicant returned to the premises he was searched and on his person was found a plastic bag in which there was some heroin.  He pleaded guilty in respect of both of those offences.  The appeal to this Court in respect of the offence in respect of which the appeal is competent was based upon a contention that the sentencing Magistrate should have made the sentence which he imposed concurrent with that which was imposed in the Southport District Court in March this year.

The offences in respect of which the applicant was sentenced in March this year were one of entering with intent for which he was sentenced to 18 months imprisonment, two of receiving for which he was sentenced to six months imprisonment and one of housebreaking for which he was sentenced to two years  imprisonment, and the learned sentencing Judge made a recommendation that he be eligible for parole after serving nine months.

All of those offences were committed, as we were told by Mr Campbell for the respondent, on 28 August last year.  It could therefore not be contended by the applicant before this Court that the offences, the subject of this application arose out of the same criminal conduct as those for which he was sentenced in March this year.  The offence here is of a different kind and occurred at a quite different time. 

The submission made to us, however, was really that the applicant should have been entitled, indeed that the learned Magistrate exercised his discretion wrongly in imposing the sentence cumulatively because the applicant's father, the learned Magistrate was told, is dying.  He is 60 years of age and he has six months to live, and it was the applicant's hope that he would be able to rejoin his father before he died, and help him in the hotel business which he apparently runs and which he is now unable physically to run on his own.

These facts were put before the Magistrate and plainly rejected by him as a basis for a concurrent sentence.  For myself I can see nothing wrong in the exercise by the learned Magistrate of his discretion in the way in which he did.  Even if he had imposed the sentence cumulatively, it would have made very little difference to the actual effective date of release of the applicant.

We were told that with his eligibility for parole under the previous sentence he would have been available for parole in December this year and for home detention three months earlier, but as we have pointed out during the course of argument it would have been only a minor difference in terms of home detention release had this sentence been imposed concurrently rather than cumulatively.

As I have said I can see nothing wrong with the exercise of his discretion by the learned sentencing Magistrate in the circumstances of this case.  I do not think that the facts which were put before him required him to exercise the discretion in a way other than that in which he did and I would refuse the application.

THOMAS J:  In the present matter I think it is desirable to look at the total criminal conduct of the applicant.  He committed a number of housebreaking offences on 28 August 1994.  Those were the matters upon which he was eventually sentenced in the District Court on 31 March 1995 to two years imprisonment with a recommendation for parole after nine months.

He was bailed on those offences on 28 August 1994.  The recent offences (which include a matter which will have to be resolved in the District Court) occurred on 8 December 1994 and 27 January 1995.  They were therefore not part of the one criminal exercise or aberrant conduct.  The question is whether these additional matters, had they been brought before the District Court Judge on 31 March 1995, may have produced a higher overall sentence than that which was imposed.

I think they would have justified some increase.  The increase would not have been substantial, but neither is the additional sentence that the Stipendiary Magistrate imposed, at least in respect of the possession of dangerous drugs, that is to say one month cumulative.  I have not addressed the question whether possession of tainted property would have justified an additional three months and that question may yet come before the District Court.

However, for the disposition of the present appeal it is enough to say that the imposition of one month cumulative for the possession of drugs was not manifestly excessive.

FRYBERG J:  For the reasons expressed by the presiding Judge I agree that this application should be refused.

DAVIES JA:  The application is refused and the application so far as it relates to the appeal with respect to the possession of tainted property is struck out.
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