R v Mackay

[1998] QCA 274

IN THE COURT OF APPEAL	[1998] QCA 274
SUPREME COURT OF QUEENSLAND

C.A. No. 222 of 1998

Brisbane

[R. v. Mackay]

THE QUEEN

v.

ADAM WAYNE MACKAY

(Applicant) Appellant

McPherson J.A.
Ambrose J.

Byrne J.

Judgment delivered 11 September 1998
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED ONLY TO THE EXTENT OF SETTING ASIDE THE SENTENCE OF 6 MONTHS IMPRISONMENT IMPOSED UPON REVOCATION OF THE INTENSIVE CORRECTION ORDER AND SUBSTITUTING IN LIEU THEREOF A SENTENCE OF IMPRISONMENT FOR 4 MONTHS.

CATCHWORDS:	CRIMINAL - appeal against sentence - sentencing - contravention of intensive correction order - whether sentence imposed as a result of the revocation of the intensive correction order pursuant to s.127 of the Penalties and Sentences Act 1992 was excessive - sentence of 12 months imprisonment for breaking, entering and stealing not beyond the range of sound sentencing discretion.
Counsel:	Mrs D. Richards for the applicant/appellant Mr M.C. Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	27 August 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 11 September 1998

1. At about 2.30 a.m. on 20 November 1997 the applicant was discovered by police in the driver's seat of a car. Gary Richards was sitting beside him. During a search of the vehicle, the police found three boxes of poultry on the back seat. Elsewhere in the vehicle the police located a pair of bolt cutters, a broken padlock, and other boxes of frozen poultry. An inspection of the nearby premises of P & R Poultry Pty Ltd disclosed that the company's cold room had been broken into. At the scene, the applicant admitted that he and Richards had broken into the premises and stolen the poultry. He also admitted that the car was his. He was disqualified from holding a driver's licence at the time. His driving of the car on the night of the break-in constituted the summary offence of driving whilst disqualified.

2. On 25 June this year the applicant was convicted on his pleas of guilty of breaking, entering and stealing for the poultry theft, and of the driving offence. He was sentenced to 12 months imprisonment for the theft, to six months imprisonment for the driving offence, and he was absolutely disqualified from holding or obtaining a driver's licence.

3. When those concurrent sentences of imprisonment were imposed, the applicant was also dealt with for breach of an intensive correction order imposed in the Brisbane District Court on 7 April 1998. On that day the applicant had been sentenced to serve a six months sentence by way of intensive correction for an attempted unlawful use of a motor vehicle on 21 April 1997. The Judge also imposed wholly suspended sentences of 18 months imprisonment in respect of seven charges of receiving. The applicant was cautioned that a breach of the intensive correction order would likely result in his serving the sentence in custody.

4. By 25 June the applicant had performed 23 hours community service under the intensive correction order. Otherwise, he was substantially in breach of its requirements. On 25 June the Judge was asked to sentence the applicant for the offences committed on 20 November 1997, and to deal with the applicant for the offence for which the intensive correction order had been imposed. In relation to the contravention of the intensive correction order, the Judge might have acted under s.126(4) of the Penalties and Sentences Act 1992 and resentenced the applicant. It seems, however, that the Judge was prevailed upon to act only under s.127(1) of the Act, which allowed the Judge to revoke the intensive correction order and commit the applicant to prison “for the portion of the term of imprisonment to which the offender was sentenced that was unexpired on the day” when the relevant contravention occurred. It is common ground that four months of the six months remained unexpired at the material date, with the result that the revocation of the intensive correction order pursuant to s.127 should have led to the imposition of a sentence of four months imprisonment. The sentence of six months imprisonment therefore requires correction.

5. The sentence of one year's imprisonment imposed for the breaking, entering and stealing is also challenged. It is said to be excessive on the grounds of lack of parity with the sentence imposed on the co-offender and because, as it is said, it is unlikely that a custodial sentence would have been imposed if the matter had been one of the several offences dealt with on 7 April 1998 when the intensive correction order was imposed.

6. The applicant was 21 years old in November 1997. He had first been convicted in April 1995 for a drug offence. By November 1997, he had been convicted of several other drug offences, twice been convicted of the unlawful use of motor vehicles, dealt with for a breaking entering and stealing in October 1994, fined for attempting fraudulently to obtain authorisation to enter a prison, dealt with for weapons offences, a breach of the Bail Act, breaches of fine options orders, and for other offences. In January 1997, one of the motor vehicle offences resulted in an award of 12 months probation. That probation order was still

   in force on 20 November 1997 when the offences which have led to this application were committed. On that day, the applicant was also on bail for the motor vehicle and receiving offences dealt with on 7 April this year.

7. The maximum sentence for the breaking, entering and stealing which took place on 20 November 1997 was life imprisonment: s.421 Criminal Code. This is a much higher maximum than the penalties prescribed for the motor vehicle and receiving offences dealt with on 7 April. In any event, by the time the applicant came to be sentenced on 25 June he had demonstrated by his contraventions of the intensive correction order that he was not a suitable candidate for community based orders. There is therefore little attraction in the submission that the applicant might perhaps have avoided a custodial sentence taking immediate effect had arrangements been made for all the outstanding offences to be dealt with on 7 April. And in view of the nature of the offences committed on 20 November and the applicant's prior criminal history, notwithstanding the resource savings associated with the plea of guilty, his youth, and a troubled upbringing, unless considerations of parity are to affect the question, the sentence of 12 months imprisonment for the breaking, entering and stealing cannot be beyond the range of a sound sentencing discretion.

8. In February 1998, Richards was sentenced to 18 months imprisonment for the offence he committed with the applicant. The sentence was wholly suspended for three years. At the same time Richards was sentenced for many other offences, including several of receiving, as well as of breaking and entering a dwelling house with intent, and stealing. In respect of those other offences, concurrent sentences of 18 months imprisonment, wholly suspended for three years, were imposed. Three years probation was awarded in respect of some of the offences, and Richards was also ordered to perform 200 hours community service.

9. The applicant's co-offender, Richards, was a little more than two years the applicant's junior. Like the applicant, Richards had prior convictions. By 20 November 1997 Richards had been convicted of two offences. In October 1996 he had been fined $400 for breaking and entering. On 14 April 1997 he was fined for breach of bail conditions. It seems that, like the applicant, Richards was on bail on 20 November 1997. However, unlike the applicant, he was not then on probation.

10  In sentencing the applicant, the Judge, appropriately enough, referred to the applicant's more serious criminal history prior to November 1997 as a material point of distinction between the two offenders. Relevant also to the question of parity were the applicant's greater age, that he was on probation on 20 November 1997, and that his conduct after 7 April 1998 demonstrated that he was not a suitable candidate for community based supervision. Accordingly, there was a satisfactory basis for the greater punishment imposed on the applicant.

11  It was not suggested that the sentence of six months imprisonment for the driving offence should be altered if the application failed in relation to the sentence of one year's imprisonment.

12 The application should be granted and the appeal allowed only to the extent of setting
aside the sentence of six months imprisonment imposed upon revocation of the intensive
correction order and substituting in lieu thereof a sentence of imprisonment for four months.