R v Macklin

Case [2016] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v Macklin [2016] QCA 244

PARTIES:

R
v
MACKLIN, Shannon Bruce
(applicant)

FILE NO/S:

CA No 118 of 2016
DC No 111 of 2015
DC No 212 of 2015
DC No 370 of 2015
DC No 372 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 5 April 2016

DELIVERED ON:

30 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2016

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal against sentence allowed.

3.   Vary the sentences imposed on counts 1, 2 and 3 on indictment number 111/15 by substituting six years imprisonment for seven years imprisonment on each of those counts.

4.   The sentences imposed at first instance are otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant after arrest on these charges served 11 months of non-declarable pre-sentence custody serving an earlier sentence having breached parole – where the applicant contends that the sentence was manifestly excessive in that the judge failed to apply the totality principle or give sufficient weight to his guilty pleas – where the judge reduced the head sentence by 18 months to reflect mitigating features and the applicant’s poor prospects of parole following multiple parole breaches – where the reduction did not adequately reflect the applicant’s guilty pleas and his period of non-declarable pre-sentence custody – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Amato[2013] QCA 158, cited
R v Blenkinsop[2007] QCA 181, cited
R v Gills[1996] QCA 34, cited
R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121, cited
R v SBI[2009] QCA 73, cited
R v Woods[2001] QCA 474, cited

COUNSEL:

L D Reece for the applicant
D R Kinsella for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  The applicant pleaded guilty on 20 October 2015 to a five count indictment: burglary with violence while armed in company; two counts of armed robbery in company; unlawfully using a motor vehicle to facilitate the commission of an indictable offence; and unlawfully possessing a weapon to commit an indictable offence.  These offences occurred on 9 August 2014.  On 25 November 2015 he pleaded guilty to the following counts contained in two further indictments: fraud, breaking entering and stealing, entering premises with intent to commit an indictable offence, breaking and entering premises and wilful damage, unlawful…

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Details
AGLC
R v Macklin [2016] QCA 244
Case
[2016] QCA 244
Decision Date

CaseChat Overview and Summary

The case of R v Macklin involved an appeal against the sentence imposed on the applicant, who was convicted of multiple offences including home invasion with a firearm. The applicant argued that the sentence was manifestly excessive, contending that the judge failed to apply the totality principle or give sufficient weight to his guilty pleas and his period of non-declarable pre-sentence custody. The applicant had a lengthy criminal history and had been serving an earlier sentence at the time of his arrest for the present charges. The trial judge had reduced the head sentence by 18 months to account for mitigating features and the applicant’s poor prospects of parole, but the applicant argued this reduction did not adequately reflect his guilty pleas and non-declarable pre-sentence custody.

The court examined whether the sentence was manifestly excessive, considering the totality principle, the mitigating features of the guilty pleas, and the period of non-declarable pre-sentence custody. The respondent argued that the judge had given sufficient weight to the mitigating factors and the sentence was not manifestly excessive. The court considered the seriousness of the offending, the need for general and personal deterrence, and the impact on the victims. It also took into account the applicant’s troubled background, his expressions of remorse, and his potential for rehabilitation, although it remained concerned about his recent parole breaches and decision-making.

The court concluded that while the applicant’s criminal history was concerning, the primary judge was correct to start with a sentence of about eight and a half years imprisonment, reflecting the seriousness of the offences. The judge had appropriately reduced this to seven years imprisonment with parole eligibility at the halfway point, taking into account the mitigating features and the applicant’s non-declarable pre-sentence custody. However, the court found that the sentence could be further reduced to six years imprisonment to more adequately reflect the totality principle and the applicant’s non-declarable pre-sentence custody.

The final orders of the court were to grant leave to appeal against the sentence, allow the appeal, and vary the sentences imposed on counts 1, 2, and 3 by substituting six years imprisonment for seven years imprisonment on each count. The sentences at first instance were otherwise confirmed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Vary the sentences imposed on counts 1, 2 and 3 on indictment number 111/15 by substituting six years imprisonment for seven years imprisonment on each of those counts.

4. The sentences imposed at first instance are otherwise confirmed.

Background

Background to the litigation

He had a lengthy and relevant prior criminal history commencing in 1996 and extending over nine pages. He was initially sentenced to community based orders but between 1999 and 2008 he was sentenced to increasingly severe terms of imprisonment, mostly for property offences. He also had convictions for drug and street offences. In November 2002 he was sentenced to four years imprisonment suspended after 18 months with an operational period of four years for housebreaking and other property offences. In April 2006 he was sentenced for further property offences, as well as the breach of the 2002 partially suspended sentence, to five years imprisonment with a recommendation for post‑prison community based release after two years. In March 2008 he was sentenced to a further five years cumulative imprisonment for property offences including burglary at night with a circumstance of aggravation of using or threatening violence whilst armed in company. This offence involved an armed and violent home invasion. He was released on parole and returned to custody on a number of occasions before his most recent release on parole on 10 June 2014, about two months prior to his latest offending. He returned to custody on 11 August 2014, completing his 2008 sentence on 28 July 2015. He was on remand for the present offences from 29 July 2015 until sentenced.The facts of the present offending An agreed schedule of facts[1] recorded the following. On the evening of Saturday 9 August 2014, the male complainant returned home at about 7 pm. He noticed a small dark blue car parked in the street. After dinner he and the female complainant watched a movie. She had a shower and he fell asleep on the couch. He woke up when something hard hit him on the top of his head. He saw two men whom he did not know. One was the applicant who was armed with a shotgun which he pointed at the male complainant’s face. The other was Daniel Willemse who was armed with a crowbar. Willemse walked to the bathroom, tried to open the door and demanded the female complainant’s mobile phone. She told him it was in the lounge room and he returned there while she ran to the kitchen and grabbed a knife. The applicant turned and pointed the shotgun at her, telling her that it was “definitely loaded” and not to do anything stupid. She put the knife down and sat next to the male complainant. Both men were agitated pacing back and forth across the room. The applicant tipped out the contents of the female complainant’s handbag and took a gold bracelet. The offenders also took the complainants’ mobile phones. The applicant repeatedly asked “where is it”. The male complainant offered his wallet but the offenders continued searching the house.[1]Exhibit 9, AB 121 – 125; Exhibit 11, AB 127 – 132. The male complainant asked if they were looking for “Julz”, who had lived in the house some months earlier. The complainants explained they had nothing to do with him. The applicant called out to Willemse, “Oi brother we got the wrong people mate”. The applicant continued to point the shotgun at the complainants stating, “If I find something you’ll be in trouble” and “I want Julian, I want the money”. After a period during which Willemse stood guard and pointed the shotgun at the complainants, the applicant received a phone call and yelled out “come on brother, we need to get out of here”. The applicant checked the complainant’s identification, removed $50 from one wallet and the coins from another, apologised saying he needed the money because he was sick, and acknowledged that the complainants were not who he was looking for.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent accepts that the applicant’s non-declarable pre-sentence custody from 11 August 2014 to 28 July 2015 was a relevant matter to be taken into account in the sentencing process, although the weight to be given to it was a discretionary matter, not a mathematical exercise. But the respondent does not accept that the judge gave insufficient weight to the time served on the 2006 and 2008 sentences prior to the applicant’s most recent return to custody on 11 August 2014. The judge, the respondent contends, gave sufficient weight to the mitigating factors including the guilty pleas. The sentence was not manifestly excessive and no error was demonstrated.Conclusion The applicant’s offending history is gravely concerning. It demonstrates that he is a recidivist drug addicted property offender whose anti-social behaviour in recent times has escalated to offences of violence. Even accepting the submission that he has no previous convictions for violence as a principal offender, he had a conviction in 2008 for a violent home invasion, not dissimilar to the most serious of his present offences. He offended on many separate occasions over nine days, sometimes whilst armed with a loaded sawn off shotgun, and whilst on parole for similar offending. Deterrence, both general and personal, was an important consideration. The complainants in this latest home invasion must have been frightened for their lives; the gun was loaded and, as the victim impact statement unsurprisingly demonstrates, the offence has had a serious detrimental impact, particularly on the female complainant. The psychological report tendered on the applicant’s behalf provides some insight into his troubled upbringing and the reasons for his disturbing, recidivist and escalating criminal behaviour. He seems to have some redeeming features, demonstrated by his letter of remorse and the continuing support of his family and partner, an apparent display of optimism over experience. It is to his credit that, when sober, he demonstrates some insight into his offending, a desire to abstain from substance abuse and live a pro-social life with his family, and an ability to participate in and complete courses which will assist his rehabilitation. But unfortunately his most recent poor decision-making and behaviour on parole raises real doubts as to whether he will be able to live up to his sober aspirations. I accept the respondent’s contention that the primary judge was right to consider a sentence of about eight and a half years imprisonment as a starting point for the applicant’s serious and diverse offending over a short period in August 2014. There was no contention at first instance or in this Court, that a serious violent offence declaration was warranted. That is likely to be the next step, however, if he continues to re-offend. His Honour then discounted that sentence to seven years imprisonment with parole eligibility at the halfway point to reflect the mitigating features of the applicant’s guilty plea and that he had been in custody since 11 August 2014, almost 12 months, a period which could not be declared under s 159A Penalties and Sentences Act 1992 (Qld). His Honour made clear that he was reflecting the mitigating features by reducing the head sentence rather than setting an early parole eligibility date as the applicant’s prospects of release on parole, in light of his past conduct and the unfavourable report from his parole officer, were poor.

Ratio Decidendi

Legal Principle Established

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