R v Highlands

[1992] QCA 221

IN THE COURT OF APPEAL [1992] QCA 221

SUPREME COURT OF QUEENSLAND

C.A. No. 79 of 1992

T H E Q U E E N

v.

ERICH GEORG HIGHLANDS

(Applicant)

JUDGMENT OF THE COURT

Delivered the Twenty-seventh day of July 1992

This is an application for leave to appeal against sentence. The applicant pleaded guilty to six counts of supplying a dangerous drug, one count of possession of a dangerous drug and 26 counts of receiving. The learned primary

judge imposed a sentence of 18 months in respect of the first

six convictions and three months in respect of the seventh; his Honour ordered that those sentences be mutually concurrent. With respect to the receiving counts, his Honour imposed a sentence of imprisonment for 10 years, which he ordered to be cumulative upon the sentence of 18 months.

In the result, the applicant has been sentenced to imprisonment for 11 years and six months; he was one month in

custody before sentencing. The judge ordered that he be eligible for parole after having served four years of the sentence.

Mr. S. Herbert, who appeared for the applicant, complained of the 10-year sentence on the receiving charges. He did not attack the other sentences, nor did he suggest that the judge erred in ordering that the 10-year sentence be cumulative upon the lesser sentence; Mr. Herbert contended, however, that in considering the propriety of the 10-year sentence, one is entitled to notice that the total of the sentences is 11 years and six months.

The applicant was 25 years of age when sentenced and although he had been convicted of a number of previous offences, none of them involved imprisonment. The only offences of dishonesty were two convictions for unlawfully using a motor
vehicle, one committed when he was 17 years of age and the other

when he was 18 years.

The offences of supplying drugs related to
methylamphetamine and involved a total, it appeared, of about a
third of a gram sold, for sums amounting in all to about $1,000.
The other drug offence consisted in possession of about a third
of an ounce of marijuana. It is desirable to mention these
matters, although as we have said Mr. Herbert did not complain
of the sentences in respect of the first seven counts; his
application related solely to the sentence on the 26 receiving

offences, committed in the period of about five months between 1

December 1990 and 4 May 1991. dealing in quite high commercial activity"; he said that

activity was "on a large scale". From the length of the sentence imposed, it appears that the judge regarded the counts of receiving as particularly bad specimens of that offence.

If one looks merely at the particular offences of which the applicant was convicted, it is not easy to see how a 10- year sentence could be justified. It appears that the total retail value of the goods the subject of these charges was about $40,000 or a little more. The applicant had not a very

significant criminal history and had never been sentenced to imprisonment. He made full admissions to the police and pleaded

guilty. On these bare facts, one would think that a 10-year sentence could not be reconciled with those imposed in respect of what appear to be comparable offences, referred to in the Crown's submissions. The first of these, in order of time, is Carroll (C.A. No. 80 of 1987, unreported, 21 May 1987). Carroll

pleaded guilty to 12 receiving charges and was given a 4-year sentence with a recommendation for parole after 18 months. The value of the property was $17,000 and it was thought that he was "in the business of disposing of the stolen property". He had previously been convicted of breaking, entering and stealing and receiving charges and while on probation in respect of those offences, was convicted of imposition in relation to some 70 charges and ordered to be imprisoned. The offences in question had been committed during the currency of a further probation

order. Leave to appeal was refused, the Court not indicating whether it regarded the sentence as inclined to be too low. On the whole, the case appears to us comparable with the present, if one ignores the additional offences which are discussed

below; although the amounts of money involved in Carroll were

somewhat lower, even having regard to the date of the offence, there was a considerably worse record of past offences of dishonesty.

The second case is Barnes (C.A. No. 290 of 1988, unreported, 5 April 1989). Barnes, also, was initially sentenced to four years' imprisonment; he was 47 years old and a first offender. Barnes stole a motor cruiser which the Court assumed would have been worth more than $100,000. He had a good work history and had lost at least $24,000 as a result of his offence; the property was recovered. Barnes was sentenced on appeal to three years' imprisonment, with a recommendation for parole after 12 months. The case is plainly one which is not as bad as the present, but the value of property involved was

substantially higher.

The third case is Hiratos (C.A. No. 117 of 1990, unreported, 23 August 1990). That was another four-year sentence, on convictions of 16 counts of receiving. The total value of the goods was not known, but those in one count were valued at $25,000 and from the description of the other property, the total could not have been much less than that in the present case. Hiratos was 40 years old with no previous convictions and was a man who had some property. He had encountered financial difficulties, but the Court was of the view that he could have solved them by selling assets. The acts of receiving took place over a period of about the same length as was charged here. Hiratos had co-operated with the police, but it appears not quite frankly or readily. He was prepared to

give evidence against persons who had sold him the property. Leave to appeal was refused, however, it is, we think, significant that the Court remarked of the four-year sentence there that it might be "at the higher end of the range".

It would seem to us, then, that the 10-year sentence cannot stand, by comparison with these three decisions and particularly the first and third of them, unless there is some additional factor justifying a head sentence 2½ times as long as that in Carroll and Hiratos. We would add that reference was made to

Bargenquast (No. 256 of 1980, 14 April 1981) where the Court of Criminal Appeal dealt with a case including some receiving offences. We do not regard it as close enough to the present facts to provide much assistance.

The only circumstance which could be argued to justify such a sharp distinction from the cases we have mentioned is that the applicant was, in fact, in the business of receiving for considerably longer than the period the subject of the charges.

Upon his admissions to the police, he engaged in it for about

3½ years. is "hard to imagine a more serious case than this one"; but
that could hardly be so unless one took account of the offences
committed during the extra three years.

The question, as it appears to us, is whether one is entitled to do so. The judge said that he limited himself to the 25 charges, but reading the reasons as a whole, it appears that his Honour must have had regard to the activities during the other three years, in some way which is not quite defined.

In Jobson [1989] 2 Qd.R. 464, Ryan J., with whom Connolly J. agreed, expressed the view that a judge may have regard to the circumstances in which the offence charged was committed in order to determine what is an appropriate sentence. His Honour went on:

"It would be wrong, after thus ascertaining those circumstances, to impose a higher sentence than was warranted for the offence charged, since that would amount to the imposition of a greater sentence by reason of the commission of other offences than the one charged. But it would be permissible to have regard to these in deciding whether any leniency should be shown to the prisoner, for example because it was a 'wholly spur of the moment lapse' (per Street C.J. in R. v. H. [(1980) 3 A.Crim.R. 53] at 59); or that it was 'some casual act in a moment of temptation' (per Moffitt P., ibid at 62)".

As Thomas J. pointed out in Jobson (at 466, 467) there are statements in R. v. H. which go further than justifying use of other offences merely to rebut the suggestion that the offence was an isolated incident. Here, whether or not one takes note of the offences committed during the additional three years, it was not a case of isolated incidents; there plainly was a business of receiving going on during the five months. The

judge made it clear that he was sentencing the applicant only in

respect of the charges laid, but the result arrives at tends to make one think that consideration of the 3½ years' activities must have produced a higher sentence than would have been imposed if there had been no suggestion of any receiving outside

the five months.

There is an important distinction between sentencing having regard to the circumstances in which the offence charged was committed, which is permissible, and punishing the convicted person for distinct offences of which he or she has not been convicted, which is not. There is, of course, provision in the Code for taking into account other offences, under s.651, but that did not occur here.

Although the offences committed in the additional three years were of the same character, it appears, as those of which the applicant was convicted, they were not otherwise connected with the latter. We would not wish to encourage excessive pedantry in the approach to matters of this sort, but it does not appear to us possible to treat the existence of the additional three years of receiving activity as of other than marginal relevance to the proper level of sentencing for the activities of the five months.

In our respectful opinion, the learned judge's discretion must have miscarried and it is necessary for this Court to impose what it regards as a proper sentence, in the

circumstances.

We would add to the facts previously set out that the applicant was said to have had an unfortunate upbringing, having been sexually abused as a boy. His working record was

reasonably satisfactory until about the time he began the receiving business. There was no immediate excuse for his having engaged in the business, of such a kind as to induce

leniency; he seems to have become a receiver to earn easy

money, in order to feed a drug habit. We have mentioned that he had committed previous offences, but had never been sentenced to

imprisonment, and that he pleaded guilty and co-operated

with the police.

The application will be granted and the appeal allowed.

Keeping in mind the connection of offences of this kind with breaking and entering, a serious problem in our society, we have come to the conclusion that the proper sentence for the

receiving offences is that suggested by counsel for the applicant, namely six years. If one adds the sentences in respect of the drug offences, the total then becomes seven years and six months.

We propose to recommend that the applicant be eligible for parole after three years.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 79 of 1992

T H E Q U E E N

v.

ERICH GEORG HIGHLANDS

(Applicant)

_______________________________________________

Mr. Justice Pincus
Mr. Justice Davies
Mr. Justice McPherson

_______________________________________________

Judgment of the Court delivered on 27th July, 1992.

_______________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

GRANTED.

APPEAL ALLOWED.

SENTENCE IMPOSED BELOW VARIED FROM IMPRISONMENT FOR 10 YEARS WITH RESPECT TO RECEIVING COUNTS TO IMPRISONMENT FOR 6 YEARS, AND THE RECOMMENDATION THAT APPLICANT BE ELIGIBLE FOR PAROLE AFTER 4 YEARS BE VARIED TO A PERIOD OF 3 YEARS.

THE SENTENCE IS OTHERWISE TO STAND.

_______________________________________________

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 79 of 1992
Before the Court of Appeal
Mr. Justice Pincus
Mr. Justice Davies

Mr. Justice McPherson

T H E Q U E E N

v.

ERICH GEORG HIGHLANDS

(Applicant)

JUDGMENT OF THE COURT

Delivered the Twenty-seventh day of July 1992

MINUTE OF ORDER:The application for leave to appeal against sentence is granted and the appeal is allowed. The sentence imposed below is varied from imprisonment for 10 years with respect to the receiving counts to imprisonment for 6 years, and the recommendation that the applicant be eligible for parole after 4 years is varied to a period of 3 years. The sentence is otherwise to stand.

CATCHWORDS:	CRIMINAL LAW - SENTENCE - Applicant sentenced to 10 years for inter alia receiving cumulative upon 18 month sentence for drug offences - whether length of sentence indicates trial judge erroneously had regard to applicant's previous 3½ years of criminal activities - 6 years substituted.
Counsel:	P. Ridgway for the Crown S. Herbert for the Applicant
Solicitors:	The Director of Prosecutions for the Crown
The Legal Aid Office for the Applicant
Hearing Date(s):	12 June 1992