R v Martin

[1998] QCA 94

IN THE COURT OF APPEAL	[1998] QCA 094
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No.474 of 1997
Before	Davies JA McPherson JA Shepherdson J

[R. v. Martin]

THE QUEEN

v.

PETER GEORGE MARTIN

(Applicant)

Davies J.A.
McPherson J.A.

Shepherdson J.

Judgment delivered 15 May 1998

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL SENTENCE - Application for leave to appeal against sentence on the ground that the sentence was manifestly excessive - 4 years imprisonment imposed for each housebreaking offences - extensive criminal history involving offences of dishonesty - s.161(1) Penalties and Sentencing Act 1992 (Qld) and R v R.M. Skedgwell (CA 434 of 1997) discretion considered - no error in the exercise of the sentencing discretion - application refused.

Counsel:	Mr A Rafter for the applicant Mr M C Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	26 March 1998

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 15 May 1998

I agree with the reasons for judgment of Shepherdson J. and with the order he proposes.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 15 May 1998

I agree with the reasons of Shepherdson J. and with the order he proposes.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 15 May 1998

On 11 December 1997 the above named applicant pleaded guilty in the District Court at Southport to six counts. These counts in abbreviated form and sentences imposed were:-

1.       Housebreaking - on 22 May 1997 - 4 years imprisonment

2.       Stealing $150, a video remote control and two diamond rings - on 22 May 1997

- 2 years imprisonment

3.       Unlawful use of a motor vehicle with a circumstance of aggravation namely using the motor vehicle for the purpose of facilitating the commission of a indictable offence - on 9 June 1997 - 6 months imprisonment

4.       Housebreaking - on 9 June 1997 - 4 years imprisonment

5.       Stealing a stereo system and speakers - on 9 June 1997 - 2 years imprisonment

6.       Dangerous driving - on 9 June 1997 - 6 months imprisonment

The learned sentencing judge declared that 185 days spent in pre-sentence custody between 9 June 1997 and 11 December 1997 be deemed time already served under the sentences and he recommended that the applicant be considered for parole after serving 21 months imprisonment.

The applicant applies for leave to appeal against the sentence of 4 years imprisonment for each housebreaking offence on the ground that such sentence was manifestly excessive. There is no complaint about the other sentences.

At the guilty plea the applicant s counsel accepted the prosecution s versions of facts in relation to each offence as placed before His Honour.

In counts 1 and 2 the applicant was charged alone. A dwelling house was broken and entered during day light hours and the property taken (the subject of count 2) was valued at $2,250 none of which was recovered. It appears that the applicant was disturbed in the course of committing the offence. A video remote control was stolen but a video recorder in the premises had been moved but not taken. The applicant s finger prints were found at the scene. When the applicant was apprehended on 9 June 1997 in relation to other matters which are the subject of counts 3 to 6 he denied all knowledge of the offences committed on 22 May 1997.

In counts 3 to 5 the applicant was charged with another man Jeffrey Charles Howard. The applicant was charged alone with count 6. The vehicle was taken from a parking bay in Queen Street, Southport. The police were subsequently made aware of the taking. The vehicle was seen at Sorrento and followed by a marked police car. The applicant then committed the dangerous driving offence during pursuit by the police at about 4.30 p.m. Both the applicant and Howard surrendered voluntarily to the police. The property the subject of count 5 was found in the car. The house the subject of count 4 was found to have been broken into and a screw driver which was matched to damage associated with that house breaking was located in the vehicle. Both the applicant and Howard took part in interviews and admitted the offences. The vehicle used on 9 June was damaged and Howard was ordered to pay compensation amounting to $419.65.

The applicant had an extensive criminal history. He was born on 10 August 1967 in Sydney. His recorded criminal history began in the Cobham Childrens Court on 28 September 1983, when on a charge of break, enter and steal he was given 12 months probation. Thereafter he appeared regularly in courts when he was sentenced for a number of offences including stealing, breaking and entering with intent, larceny of a motor vehicle, unlawful use of conveyance, possession of implements to enter conveyance. He appears to have first received a term of actual imprisonment on 7 December 1988 in the North Sydney Local Court when he was sentenced to 6 months imprisonment. Thereafter prison sentences occurred fairly regularly. On 4 January 1990 in the Kogarah Local Court he was sentenced to various terms on a number of charges the head sentence being 12 months imprisonment for illegal use of a motor vehicle. I note that in the Goulburn District Court on 31 July 1991 on a charge of possession of property stolen outside of the State he received a minimum term of 3 years and 3 months commencing on 17 April 1991 and an additional term of 1 year and 1 month and was eligible for release on parole on 16 July 1994.

On 26 June 1996 he appeared in the Tweed Heads Local Court on 14 charges of receiving and two charges of failing to appear. He was sentenced to a fixed term of 6 months from 17 June 1996.

As the prosecutor pointed out to the learned sentencing judge on 11 December 1997, the applicant had not long been released from custody when he committed the 2 offences on 22 May 1997.

The learned sentencing judge, in addition to taking account of the circumstances of each offence referred to the following matters:-

(i)       that house breaking is a prevalent offence;

(ii)	that the applicant had a very bad criminal history which included numerous offences of dishonesty;
(iii)	that the co-offender Howard had pleaded guilty to the offences in counts 3,4, and 5 and had a far less serious criminal history;
(iv)	that the applicant and Howard had co-operated with the police and had made early pleas of guilty;

At the same time His Honour sentenced Howard, the co-offender in counts 3, 4 and 5 to 3 years imprisonment in respect of the house breaking charge, 1 year for the stealing and 6 months for the unlawful use and these sentences were wholly suspended. His Honour fixed an operational period of 4 years and ordered Howard to pay compensation of $419.65 by 2 April 1998.

The applicant s arguments are:-

1.       That the 4 years imprisonment for counts 1 and 4 is harsh when compared with the wholly suspended sentence imposed upon Howard.

2.       The recommendation for parole after 21 months was an insufficient allowance for the plea of guilty, the 21 month period being only 3 months earlier than the time when the applicant would ordinarily be entitled to apply for parole in relation to the 4 year sentence.

3. The applicant, as the learned sentencing judge was told, had the responsibility of
caring for his two children aged 7 and 2 years who had been abandoned by their
mother.
The applicant s counsel submits that the sentences for counts 1 and 4 should have

been 4 years imprisonment with a recommendation for parole after serving 12 to 18 months.
Mr Rafter, who in this Court appeared for the applicant concedes that Howard had a
far less serious criminal history than the applicant although Howard was of similar age - he
was born on 21 October 1968. Howard s recorded criminal history began in 1987 with a
conviction for driving in a dangerous manner. In 1988 he was convicted of 2 charges of
stealing, 1 of malicious injury and 1 of driving while disqualified. Subsequent offences such
as offensive language and offensive behaviour attracted fines. On 12 November 1996 in
the Southport Magistrates Court on a charge of possession of property suspected of being

tainted no conviction was recorded and he was fined. His prior criminal history shows that

before 11.12.1997 he had not been sent to prison.

At the end of the day, Mr Rafter s submission boils down to his saying that the recommendation for parole is such that the sentence imposed for each of the house breaking offences shows that the exercise of the sentencing discretion has some how miscarried. While it may be true to say that another sentencing judge may have made a recommendation for parole slightly less than the 21 months fixed by the learned sentencing judge, it does not follow that therefore the recommendation is one with which this Court should interfere.

There is one other aspect of this application on which the decision of this Court - The Queen v Ross Moana Skedgwell (C.A. 434 of 1997) in which judgment is delivered today - may be said to bear.

That aspect concerns the application of s.161(1) of the Penalties & Sentences Act 1992. As I have already mentioned, in the present case the learned sentencing judge declared that 185 days spent in pre-sentence custody between 9 June 1997 and 11 December 1997 be deemed time already served under the sentences all of which were imposed on 11 December 1997. He obviously applied s.161(1).

The applicant was taken into custody on 9 June 1997 in respect of the offences committed on that day. On that day he was spoken to about the offences committed on 22 May 1997 but denied all knowledge of them although, as mentioned earlier, his finger prints had been found at the scene.

It appears therefore that for the whole of the period from 9 June 1997 to 11 December 1997 the applicant was held in custody for all the offences to which he pleaded guilty and for no other reason. On its facts this case is distinguishable from Skedgwell and called for the application of s.161(1) only and not the general sentencing discretion referred to in Skedgwell. The learned sentencing judge correctly applied s.161(1).

No error in the exercise of the sentencing discretion has been shown. I am not persuaded that the sentence of 4 years with the recommendation for parole after serving 21 months is manifestly excessive. I would refuse the application.