R v Larden, Ryan and Attorney-General of Queensland

[1996] QCA 331

IN THE COURT OF APPEAL	[1996] QCA 331
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 237 of 1996 C.A. No. 238 of 1996
BeforeThomas J de Jersey J Dowsett J
[R v. Larden & Ryan; Attorney-General of Queensland]

T H E Q U E E N

v.

MYLES ANTHONY LARDEN

and

SEAN CHRISTOPHER RYAN

Respondents

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Thomas J
de Jersey J

Dowsett J

Judgment delivered 06/09/1996

Separate concurring reasons for each member of the Court.

1.Appeal allowed.
2.Set aside all orders imposed below.
3.In lieu sentence each respondent to:

Count 2- imprisonment for a period of 3 years with a recommendation for parole after a

period of 9 months.

Count 3- imprisonment for a period of 3 years with a recommendation for parole after a

period of 9 months.

Count 4- imprisonment for a period of 3 months.
Count 5- imprisonment for a period of 3 months.
All sentences to be served concurrently.
4.Convictions recorded in respect of counts 2, 3, 4 and 5.
5.Order any amounts paid in connection with the fines be remitted.
6.Order that a warrant issue for the apprehension of the respondents.

CATCHWORDS:  CRIMINAL LAW - ATTORNEY-GENERAL'S APPEAL

AGAINST SENTENCE - at time of appeal offenders already at large - sentences manifestly inadequate - stealing - wilful destruction of property - obtaining property by threats - unlawfully using a motor vehicle for the purpose of committing an indictable offence.

Counsel:	Ms L. Clare for the appellant Mr A. Rafter for the respondents
Solicitors:	Director of Public Prosecutions for the appellant Legal Aid Office (Qld) for the respondents

Hearing Date: 22/08/1996

REASONS FOR JUDGMENT - DOWSETT J

Judgment delivered 06/09/1996

On 15 May 1996 each of the respondents pleaded guilty to one count of stealing opals to a value exceeding $5,000, one count of wilfully and unlawfully destroying a brief case, a carry bag and a shotgun and one count of wilfully and unlawfully destroying a mobile telephone, a brief case and a quantity of personal papers. At the same time each pleaded not guilty to the charge of obtaining property by threats, to which charge the stealing count was an alternative. Each also pleaded not guilty to a charge of unlawfully using a motor vehicle for the purpose of facilitating commission of an indictable offence. A trial ensued at which both were acquitted of stealing with threats but convicted of unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence. On the stealing and unlawful use counts each was sentenced to 3 years' imprisonment to be suspended after 14 days for a period of 5 years. Each was also fined $2,000. Convictions were recorded in respect of both counts. On each of the two wilful destruction counts, each respondent was ordered to perform 120 hours of community service, a total of 240 hours for each offender. Convictions were not recorded.

The Attorney appeals against all sentences, asserting that they are manifestly inadequate. With respect to the wilful destruction counts he also submits that the reasons given for not recording convictions did not justify that result.

The circumstances surrounding the commission of these offences were quite bizarre. The complainant in connection with the stealing charge (Haywood) was involved in the opal trade in Lightning Ridge. He and the respondents had previously been engaged in a joint business undertaking in which Haywood had sought to establish an opal retailing outlet at the Gold Coast. The respondents had been employed in the business and considered that they had incurred financial loss as a result of their involvement. The learned sentencing judge accepted that they bore Haywood some ill-will which they considered to be justified. In order to even the score with Haywood the respondents entered into an elaborate plan to relieve him of a substantial quantity of opals. To this end Ryan telephoned Haywood using a Japanese accent, and claimed to be a person name Sagowa. He said that he wished to acquire about US$200,000 worth of opals. They arranged to meet at the Merino Motel in St George at 9.30 pm on the following Friday night, 29 December 1995. Haywood and a man called Curtis then drove in Curtis' vehicle to St George, taking a substantial quantity of opals said to be worth about $350,000. Curtis' vehicle was the subject of the unlawful use count. They enquired at the Merino Motel to confirm that Sagowa was booked in there. The respondents had made such a booking, and so the complainants were satisfied. The complainants had dinner, refuelled the car and returned to the Merino Motel. They were told that Sagowa had cancelled his booking and was on his way back to Japan. They then departed for Dirranbandi.

About 10 kilometres out of Dirranbandi Haywood took over the driving from Curtis. It was raining heavily and there was water on the road. He noticed a car approaching from behind and said that he "seen sirens going". The other car sped up behind them and "pulled us over on the side of the road". This was apparently effected by somebody calling to them through a megaphone or loudspeaker, alleging that their car had been reported as engaged in an armed robbery. The overtaking car had blue lights and a "Police" sign in black letters. They were told to get out of the car and put their hands on the backs of their heads, which they did. Both cars were then driven away, leaving Haywood and Curtis at the side of the road. The opals were in Curtis' car. Haywood and Curtis were later picked up on the road by another motorist.

The respondents' version was that in order to recoup some of the losses which they attributed to Haywood's misconduct, they decided to engage in this scheme. They hired a motor vehicle and bought blue and red strobe lights which operated from a cigarette lighter in the car. Obviously, the intention was to simulate the lights on a police car. They denied that there was any "Police" sign on the car. They also had a spotlight which, Larden said, Ryan shone into Haywood and Curtis' eyes to prevent them from identifying the offenders. According to Larden, after they had ordered Curtis and Haywood out of the car, he put a green garbage bag on his head, went to Curtis' car, saw that the opals were there, jumped in and reversed the car away from where it had stopped. He was wearing gloves. Ryan, in the meantime, also reversed their car away from the scene. They removed two briefcases, a mobile telephone, a shotgun and a green bag containing the opals from Curtis' car and then abandoned it, driving away in their own vehicle, which was hired. They threw the mobile telephone on the road, "so it'd break."

They placed the property in green garbage bags and concealed them somewhere along the road. They then drove to Toowoomba where they stayed in a motel. The next day, they returned the hire car, collected their own vehicle and drove to the site where the property was concealed. They went through the property and discovered numerous documents concerning Larden. Larden deliberately damaged the shotgun and then threw it into a river. They buried the briefcases and most of the papers and took away the opals and the rest of the papers. They eventually concealed the opals at Larden's home at Waterford West.

On 2 January 1996, presumably as a result of information given to them by the complainants, the police searched Larden's premises. Whilst they were so searching, Larden and Ryan arrived and were subsequently interviewed. It would seem that Ryan confessed and when told of this, Larden also made a confession. The opals were discovered in the roof guttering at Larden's home. There was a suggestion that some of the opals were not recovered, but the learned sentencing judge was not satisfied that this was so. This Court should proceed upon the same basis. The respondents said that they had intended to return some of the opals after deduction of sufficient to meet their claims against Haywood.

The respondents were acquitted on the charge of stealing with threats of actual violence but were convicted on the count of unlawful use. The only basis for defending the unlawful use charge was their assertion that they had not used the vehicle to facilitate the commission of an offence but rather to facilitate their escape after commission of the offence. That view of the evidence was apparently rejected by the jury, assuming (without deciding) that this would be a valid defence.

Larden was born on 25 March 1973, was therefore 22 at the time of the offence and is now 23. Ryan was born on 3 August 1970, was therefore 25 at the time of the offence and is now 26. Each has previous criminal history. In 1990, Larden was convicted in Victoria on counts of unlawful possession and theft. He was placed on probation for 12 months. At Southport on 14 May 1990 he was convicted of unlawfully taking shop goods and released on a reconnaissance. It may be that there was a further offence because it seems that on 26 October 1992 proceedings were commenced against him for breach of a fine option order. However there is no indication in his previous record of such an order having been made. It is probably safest to proceed upon the basis that the only relevant previous convictions are the two to which I have referred. Ryan was convicted on 16 February 1994 of breaking and entering a dwelling house with intent. He was fined $400. It was said that there was no dishonest intention associated with this offence, that it was something of a prank that went wrong. He was also convicted in 1994 of failing to furnish an income tax return. Even accepting at face value the assertion that there was no dishonest intention in connection with the first-mentioned count, Ryan was a person who had experienced previous brushes with the law and had therefore enjoyed an opportunity to revise his attitudes and conduct in light of that experience.

A number of matters operated in mitigation of the appropriate sentences. Each respondent was relatively young and had only minor criminal histories. Each was of the view that he had been wronged by Haywood. There was no evidence to establish that Haywood suffered any substantial loss in connection with the theft of opals, although both he and Curtis suffered other property loss. The respondents complained that their trial had come on quickly. His Honour thought it likely that they had lost an opportunity to reorganise their lives so as to minimise the effects of any imprisonment. It may be that his Honour gave some weight to this consideration, but if so, I consider that course to have been inappropriate. Speedy justice is, after all, the objective for which we all strive. It can hardly be consistent with that objective to allow the recipients of justice to complain about speedy delivery.

The respondents pleaded to the count of stealing and to the counts concerning damage to property, and successfully defended the charge of stealing with threats. They unsuccessfully contested the charge of unlawful use of a motor vehicle, but it seems unlikely that any substantial additional time was involved in determining that question. Overall, they were probably entitled to some credit for co-operation with the police in the course of the investigation and for their pleas. There was also evidence of constructive attempts to earn income and involvement in worthwhile community activities by both respondents as well as favourable references. The learned sentencing judge appears to have formed a favourable view of the respondents to which view we should accord considerable weight.

There were however a number of aggravating features. Firstly it should be noted that his Honour proceeded upon the basis that he could take into account an outstanding charge of impersonating a police officer arising out of the same circumstances. There was no challenge to this course before us. Secondly, the offences arose out of a carefully planned undertaking which involved a not insignificant investment of money and time on the part of the respondents. It involved the acquisition of various items for use in the project and the hiring of a motor vehicle. They also incurred expense in connection with motel rooms. The planning and execution of the project appears to have extended over some days. The value of the property was substantial and the plan called for the stopping of the complainants' vehicle on a lonely stretch of road. The learned sentencing judge considered that a wholly suspended sentence was inappropriate. I agree. The question is whether the combination of a very short period of imprisonment followed by a suspended sentence, a fine and an order for community service was appropriate.

In resisting the Attorney's appeal, counsel for the respondents relied heavily upon the assertion that this Court will be more reluctant to intervene on such an appeal than in appeals against sentence by offenders. It was also submitted that on an Attorney's appeal, the Court should be reluctant to return an offender to prison where, at the time of the appeal, he is already at large. The authorities support these propositions. See R. v. Osmond; ex parte the Attorney- General [1987] 1 Qd R 49, R. v. Sheppard (1995) 77 A Crim R 139, R. v. Milano; ex parte the Attorney-General [1995] 2 Qd R 186, R. v. Grey; ex parte the Attorney-General C.A. No 477 of 1994 - unreported - judgment delivered 5 May 1995, R. v. Solway; ex parte the Attorney- General C.A. No 164 of 1995 - unreported - judgment delivered 22 August 1995 and R. v. Regan; ex parte the Attorney-General C.A. No 7 of 1992.

Nonetheless, the dominant features of this case are the amount of property involved and the deliberate and detailed plan to steal that property. These offences could not be written off as childish pranks. The circumstances surrounding them may have been bizarre, but the dishonest intention and the determination to give effect to that intention were clearly demonstrated. Insofar as concerns the value of the property involved, it was probably greater than the respondents expected, but they knew that the value would be substantial. The ruse used to attract Haywood deliberately identified the value of opals sought to be obtained. From the respondents' point of view the stakes were high. They gambled and lost.

The learned sentencing judge identified the need for a custodial sentence but, in my view erroneously, concluded that this need could be met by a merely nominal period of imprisonment, coupled with a fine and community service orders. With the greatest of respect, once the need for imprisonment was recognised, it followed that such need could not be met in this way. The proper sentence was one of imprisonment and the period had to be significant. By way of comparison, we were referred to the decision of this Court in R. v. Bamfield C.A. No 502 of 1994 - unreported - judgment delivered 4 April 1995. In that case the applicant for leave to appeal had been convicted of stealing a motor vessel worth about $200,000. The maximum sentence for the offence was 7 years' imprisonment. The thefts had occurred after an extended period of negotiation during which the applicant pretended that he wished to buy the vessel and that he had assets sufficient to enable him to do so. At some stage he broke into the vessel and stole it, putting to sea with his sons. It was subsequently discovered 70 to 75 nautical miles away. The applicant was 42 years of age and had a substantial criminal record, including offences of dishonesty, although he had not previously been sent to jail. It was said that he had made some attempts to establish a business and that those efforts were mitigating factors. A sentence of 3 years' imprisonment was not upset by this Court.

Whilst it is true that the applicant in that case was an older man with a more serious criminal history than either of the present respondents, in the present case, the total criminality of the conduct included the unlawful use of a motor vehicle, damage to property and impersonating a police officer. I must say that I consider the sentence in Bamfield to have been on the light side, a comment which might also apply to the head sentences in the present case. Whether that be so or not, the suspension of the sentences after 14 days was, in my view, clearly an error in the sentencing process because it meant that the sentence failed to recognise the need for a substantial period of imprisonment. That part of the order must be varied. The orders for community service must also be reviewed because it will not be possible for them to take effect immediately. Similarly, the fines will be inappropriate as each respondent also faces a substantial period of imprisonment. In those circumstances, all of the orders must be set aside and the sentencing discretion exercised afresh.

In passing sentence, it is necessary to take effect of the total criminality involved, keeping in mind the mitigating factors to which I have referred. I also keep in mind the general caution exercised by this Court in connection with Attorney's appeals and the apparently favourable view of the respondents taken by the learned sentencing judge. It is also necessary to recognise the fact that Larden has performed 38.5 hours of community service and Ryan has performed 42 hours. In the circumstances on the stealing charge, count 2, I would sentence each respondent to imprisonment for a period of 3 years with a recommendation for consideration for parole after a period of nine months. On count 3, the unlawful use charge, I would make similar orders. On each of counts 4 and 5, I would sentence each respondent to imprisonment for a period of 3 months. All sentences should be concurrent. These orders necessitate the recording of convictions in respect of counts 2, 3, 4 and 5. I would so order. Warrants should issue for the apprehension of the respondents. Any amounts paid in connection with the fines should be remitted.

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered the 6th day of September 1996

I agree with the reasons of Mr Justice Dowsett.

JUDGMENT - THOMAS J

Judgment delivered 6 September 1996

I agree with the reasons of Dowsett J.