R v Little

[1992] QCA 12

IN THE COURT OF APPEAL  [1992] QCA 012

SUPREME COURT OF QUEENSLAND

CA No 288 of 1991

THE QUEEN

v

MARK LITTLE

(Applicant)

THE PRESIDENT (1), McPHERSON (1) and THOMAS (1) JJA
Heard: 26 February 1992
Delivered: 3 March 1992

DATE 03:03:1992

CWDS: CRIMINAL LAW ‑ SENTENCE ‑ Applicant sentenced to effective term of 9 years for various offences including robbery ‑ whether applicant may have chance of rehabilitation if lesser term imposed ‑ whether recommendation for parole after 3 years ought be added.

JUDGE1: JUDGMENT OF THE COURT

On 8 October 1991 Mark Little pleaded guilty in the District Court at Cairns to a total of 16 offences.  Counts 1 to 3 involved breaking and entering a Kentucky Fried Chicken establishment, robbing a staff member who was there, and unlawfully detaining by binding and gagging her.  In respect of those counts he was sentenced to terms of imprisonment of two years, six years, and two years, to be served concurrently, which produces an effective sentence of six years.

The remaining offences consisted of breaking and entering commercial premises (counts 4, 8, 9, 10, 11, 12, and 13), as to which the sentences imposed were imprisonment for two years on each count; three of breaking and entering dwelling houses (counts 14, 15, 16), for which the sentences were three years imprisonment in each case; one of unlawfully using a motor vehicle (count 5); one of stealing (count 6); and one of receiving (count 7), for which the sentences were imprisonment for six months, six months, and three months.  The offences in this group (counts 4 to 16) were to be served concurrently, but to be cumulative upon the sentences in respect of counts 1 to 3.  The aggregate of all offences thus represented an effective sentence of nine years imprisonment together with a period on remand which may be counted as a further five months in custody.

The robbery was a serious instance of its kind.  The applicant broke into the Fried Chicken shop and waited for S, who was the first employee to arrive at about 7.20 am.  He had covered his face and he used a sawn‑off (but unloaded) .410 shotgun to compel her to open the office safe from which $8.725 was taken.  Having bound her with cord and gagged her with a sock, he left her on the floor of the staff room.  Inevitably it was a terrifying experience and there is medical evidence that she continues to suffer lasting effects from her ordeal.

These offences took place on the morning of 20 July 1991.  The applicant was arrested some eight hours later.  In the course of the police interview that followed he confessed to the other offences.  Approaching them in reverse chronological sequence, the last three took place on 9 July, 1991; the proceeding four on 29 June; and the previous two on 23 June.  Within each of those groups the offences might be considered as part of a single incident or series of incidents.

The amounts of money or values of goods involved in the offences were for the most part not large, and in some instances quite small.  The applicant was, however, undergoing 12 months probation at the time, having been sentenced in the magistrates court at Townsville as recently as 21 June 1991 on a charge of receiving stolen property.  He had four other recorded convictions for stealing small amounts, one of wilful destruction, and a minor drug offence.  A further term of six months imprisonment was also imposed in the District Court on 8 October 1991 for his breach of probation, to be served concurrently.

In the light of this record and the considerable number of other offences in addition to the robbery, it is difficult to see that an effective cumulative term of imprisonment can be considered excessive.  The applicant had, however, co‑operated in confessing to and providing information about the other offences.  He pleaded guilty at a very early stage.  The proceeds of the robbery were in large measure recovered.  He is a young man aged 22 and it is a feature of his criminal record that he has no convictions for offences ante‑dating February 1991.  Those for which he was sentenced on 8 October were all committed within a period of four weeks in June/July 1991.

His personal history is calculated to arouse some degree of compassion.  He was born in Parkes in New South Wales in 1968.  He is said to have been "evicted" from his home at the age of 14 years.  He was educated only to Grade 9, when he went to Sydney and lived "on the streets" until he was 18 or 19 years old.  Then he entered into a defacto relationship, which had a stabilising effect.  It lasted for two and a half years and a child was born of it.  Throughout this time he worked as a painter and he and the family attended church regularly, before the relationship broke down.  He later followed his defacto wife to Cairns early in 1991.  When he failed to re‑establish the relationship, an earlier drinking habit revived, which in part accounts for the spate of offences he committed.

Nothing emerges from this that is very strongly in his favour except that one is left with the impression that, given something to work for, he may yet succeed in rehabilitating himself.  Nine years is a long term of imprisonment with which to confront a young man who, until a year ago, had no recorded convictions.  We consider the matter to be one in which it would have been proper to extend some inducement to the applicant, in the form of a recommendation for early parole to reform his behaviour.  Counsel for the Crown on the hearing of the application was not disposed to offer any opposition to such a course.

We consider that the application for leave should be granted and the appeal allowed to the extent of adding a recommendation that the applicant should be considered eligible for parole after he has served three years of the term of imprisonment imposed.  We are not persuaded to disturb the head sentence.

ORDER: APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE BE GRANTED AND THE APPEAL ALLOWED TO THE EXTENT OF ADDING A RECOMMENDATION THAT THE APPLICANT SHOULD BE CONSIDERED ELIGIBLE FOR PAROLE AFTER HE HAS SERVED THREE (3) YEARS OF THE TERM OF IMPRISONMENT IMPOSED.  THE HEAD SENTENCE IS NOT DISTURBED.

Representation:
Counsel for the applicant: W McMillan
Solicitors for the applicant: Legal Aid
Counsel for the Crown: M Byrne
Solicitors for the Crown: Director of Prosecutions