R v Homer

[1999] QCA 70

99.70

COURT OF APPEAL

McPHERSON JA
THOMAS JA
WHITE J

CA No 314 of 1998

THE QUEEN

v.

SHANE JOHN HOMER  Applicant

BRISBANE

..DATE 16/03/99

JUDGMENT

THOMAS JA:  The applicant pleaded guilty to 33 offences committed over a two month period.  There were eight separate housebreakings followed by stealing property and in due course attempts to gain advantage on the property illegally taken, mainly from pawning the goods.

The applicant was 24 years old at the time of the offences.  He was sentenced to five years imprisonment on the housebreaking, stealing and break enter and stealing offences and to concurrent sentences of two years on the other charges.

He has a prior criminal history, mainly in Western Australia but also in Victoria.  The Western Australian history runs from September 1986 to November 1990 in the Children's Court initially, and from August 1991 to 1998 in the adult Courts.
The last matter on his record is a conviction on four counts of burglary in 1994 in respect of which he was sentenced to 18 months imprisonment.  However apart from that he had been sentenced to custody on only two other occasions during which he had received sentences of two months and three months.

The total value of property taken and including damage caused in the course of the offences was $16,858.  Some property was able to be recovered and in the result the amount outstanding in respect of which restitution was unable to be offered by the applicant was $9574.

The applicant provided considerable cooperation in pleading guilty as early as possible and this was arranged by means of an ex officio indictment.  The circumstances include the fact that the applicant was motivated by a heroin addiction.  He had come from an unstable household, his siblings having different fathers.  He left school and obtained work as a roof tiler and obtained qualifications in that field.

His family moved with him from Victoria to Townsville to start afresh, hoping to overcome his heroin addiction, but unfortunately he failed to obtain steady work and fell back into heroin use.  He enjoys the continuing support of his family.  He cooperated with police, leading inter alia to the recovery of some of the property and leaving what in the context of these cases might be described as a moderate shortfall which has not been compensated.

The comparable cases suggest that the sentence was at the very top of the applicable range for offences of this kind and particularly when one takes into account his age, his cooperation with the police, his background and attempts to overcome his problems as well as his plea of guilty to an ex officio indictment, it seems to me that the sentence of five years without any recommendation for early consideration of parole was manifestly excessive.  Among other things, it would tend to shut off any incentive towards rehabilitation which is by no means out of sight in the present circumstances.

Counsel for the respective parties are quite close in their submissions, counsel for the applicant initially submitting that the appropriate sentence should be four and a half years with a recommendation for early parole; and counsel for the Crown, responsibly in my view, submitting that while the head sentence should remain, it would be appropriate that the applicant receive an application for consideration of parole after 18 months.

In the result I would accept the submission of counsel for the Crown.  I would grant leave to appeal, allow the appeal, set aside the judgment below in respect of the matters for which five years imprisonment was imposed, and in place substitute five years imprisonment with a recommendation that he be considered for parole after 18 months.

McPHERSON JA:  I agree.

WHITE J:  I agree with the orders proposed by Justice Thomas for the reasons which he expresses.

McPHERSON JA:  The order will be as Mr Justice Thomas has stated it.

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