R v Holm

[1993] QCA 521

IN THE COURT OF APPEAL	[1993] QCA 521
QUEENSLAND

C.A. No. 383 of 1983

Before Mr Justice McPherson

Mr Justice Davies

Mr Justice Williams

THE QUEEN

v.

WILLIAM LESLIE HOLM

(Applicant)

Judgment delivered 14th December, 1993

On 21st September 1993 the applicant was convicted in the Brisbane Magistrates Court on each of the following offences:-

(a)         Dangerous driving on 14th July 1992;

(b)        Unlawful use of a motor vehicle on 14th July 1992;

(c)         Unlawful use of a motor vehicle on 7th July 1992;

(d)        On a date unknown between the 3rd and the 27th February 1993 that he unlawfully had in his possession a motor vehicle with intent to deprive the lawful owner of the use and possession thereof either temporarily or permanently;

(e)         On a date unknown between 1st March and 7th April 1993 that he unlawfully had in his possession a motor vehicle with intent to deprive the lawful owner of the use and possession thereof either temporarily or permanently.

Section 408A of the Criminal Code made each of the offences (b) to (e) inclusive a crime carrying the maximum penalty of 7 years imprisonment; the difference in wording of the charges between (b) and (c) on the one hand and (d) and (e) on the other (which is derived from the section itself) makes no difference to the seriousness of the offences. But these offences were dealt with summarily by a magistrate and in consequence pursuant to s. 408B of the Code the maximum period of imprisonment that could be imposed was 2 years. Because the dangerous driving offence was also dealt with summarily the maximum period of imprisonment that could be imposed for it was 12 months (s. 328A of the Code).

The sentences imposed by the magistrate were as follows:-

(a)         12 months imprisonment and absolute disqualification from holding or obtaining a drivers licence;

(b)        2 years imprisonment;

(c)         2 years imprisonment;

(d)        12 months imprisonment;

(e)         12 months imprisonment.

The magistrate ordered that the sentences (a), (b) and (c) be served concurrently, and that sentences (d) and (e) be served concurrently with each other but cumulatively upon the sentences imposed with respect to offences (a), (b) and (c). In practical terms the effect of the sentences was that the applicant would serve 3 years imprisonment. But further the magistrate added a recommendation that the applicant be eligible to apply for parole after serving 15 months.

The applicant seeks leave to appeal against the sentences on the ground that whether taken individually or collectively - but particularly the latter - they are manifestly excessive.

The first submission advanced by counsel for the applicant was that the magistrate erred in dealing with these matters summarily because, as is reflected by his sentence, they could not be "adequately punished on summary conviction". The argument centred upon ss. 408B and 444 of the Code. His submission came down to the proposition that a magistrate can only deal with a series of offences pursuant to those sections if the totality of the sentence for the series of offences can properly be kept within the maximum penalty described in s. 408B - a fine of 17 penalty units, or imprisonment for 2 years or both. However a reading of those sections indicates that the maximum penalty provided for therein relates to each individual offence or charge; the singular is carefully used by the draftsman in each section. That means that a magistrate may deal with a series of offences pursuant to those sections and impose with respect to each offence in the series a penalty not exceeding the maximum therein specified. Further, if the circumstances warrant adopting that course the sentence with respect to one offence could be made cumulative upon that imposed on another.

There is nothing in those sections of the Criminal Code requiring a magistrate to refrain from dealing with offences summarily merely because the total effective sentence imposed would exceed that specified in s. 408B as the maximum for each offence. However, in deciding whether or not to deal with the matters summarily one relevant consideration would be that the offences were of such a nature that cumulative sentences could be called for. If the overall criminality of the offences called for a total effective sentence well above the limit for each offence provided for by s. 408B then the magistrate should give careful consideration to the question whether he should decline to deal with the matters summarily. But this was not such a case.

The applicant is aged 26, and has a particularly bad criminal history. On 26th February 1988 he was convicted of a drink driving offence, fined $300, and disqualified from holding a drivers licence for 3 months. On 5th July 1988 he was convicted of dangerous driving, fined $350, and disqualified from holding a drivers licence for 9 months. Then on 28th March 1991 he was convicted of 3 counts of unlawfully using a motor vehicle with a circumstance of aggravation. On each charge he was sentenced to 6 months imprisonment and placed on probation for 2 years; the sentences to be served concurrently. He was therefore on probation when offences (a) to (d) inclusive were committed. Apart from that he had numerous serious traffic convictions and at the time all the offences in question here were committed he was absolutely disqualified from holding or obtaining a driver's licence. In addition there were two relatively minor drug convictions.

Further, it would appear that he was apprehended on or about 14th July 1992 when offences (a) and (b) were committed. He failed to answer bail with respect to those charges and bench warrants were issued for his arrest in August 1992. It follows that he was absconding from bail at the time offences (d) and (e) were committed. He has been dealt with for breach of probation and breach of bail, and those sentences are not relevant for present purposes.

The magistrate observed in the course of his sentencing remarks that the applicant's criminal history showed he had no respect for other people's property. He observed that community based orders had failed to rehabilitate the applicant, and specifically noted the aggravating circumstances that the offences in question were committed whilst on probation and on bail.

Further, and this appears to have been accepted by the applicant, the magistrate was informed that each of (c), (d), and (e) involved using or being in possession of a motor vehicle with the intention of altering its compliance plate so that the vehicle could be disposed of. If that circumstance of aggravation had been formally charged then the applicant would have been liable to imprisonment for a period of 12 years with respect to each offence (s. 408A). He is fortunate that no circumstance of aggravation was charged, and he should not, of course, be sentenced as if it were.

With respect to offences (c), (d), and (e) the applicant acted for reward. He was to be paid $1,000 for his part in (b); he was also to receive drugs and accommodation in return for the part he played in them all. He was a heroin addict at material times. It is also not irrelevant to note that the dangerous driving charge was a particularly serious one. It included driving through a public park, narrowly missing small children, and losing control of the vehicle.

Counsel for the applicant submitted that the sentencing discretion of the magistrate miscarried in that he failed to give adequate weight to:-

(i)         the plea of guilty;

(ii)        his cooperation with the police;

(iii)	the extent of his involvement in the charges of unlawful possession of a motor vehicle and the background to those offences;
(iv)	his prospects of employment.

He also submitted that the magistrate gave undue weight to the seriousness of the two charges of unlawful use of a motor vehicle as compared with the two charges of unlawful possession of a motor vehicle.

It appears that the magistrate dealt with the offences in chronological order. Obviously he concluded that the seriousness of the offences, their separation in time, and the fact that the last two offences in point of time were committed whilst on bail and on probation called for the imposition of cumulative sentences. That led to his imposing a cumulative sentence of 12 months imprisonment on each of offences (d) and (e) as compared with 2 years imprisonment for offences (b) and (c). Prima facie there is little logical relativity between those sentences; if 2 years was called for with respect to offences (b) and (c), then a lesser sentence could not be justified with respect to (d) and (e). Obviously the magistrate moulded the sentences so as to achieve what he regarded as a sentence in practical terms reflecting the overall criminality of the applicant's conduct. That is the way in which this court should review the sentences. It is not simply a matter of looking at a sentence of 12 months imprisonment with respect to counts (d) and (e), but rather considering the overall effect of such sentences made cumulative on the other sentences imposed.

As indicated above the terms of s. 408B did not prevent the magistrate from imposing a cumulative sentence in an appropriate case. Given the matters to which reference has been made herein this was a case which called for a cumulative sentence. Looked at overall the sentence is not manifestly excessive for offences of this seriousness (particularly given the applicant's criminal history) and it has not been established that the magistrate failed to give adequate weight to relevant matters or gave undue weight to any specific consideration. Though the applicant did plead guilty and there was some cooperation with the police, those factors carry little weight in the circumstances of his breaching bail and being on probation. The extent of his involvement in the offences under s. 408A was obviously taken into account in framing the charges; he could have been charged with a more serious circumstance of aggravation as indicated above. Finally, his prospects of employment carried little weight in the light of all the circumstances.

Further, it is not a case of the magistrate giving undue weight to the seriousness of counts (b) and (c) as contrasted with (d) and (e); the offences were of equal seriousness but the total sentence was moulded to meet the overall requirements of the case.

In the circumstances the application for leave to appeal against sentence should be

refused.