R v Martin

[1994] QCA 343

IN THE COURT OF APPEAL [1994] QCA 343

SUPREME COURT OF QUEENSLAND

C.A. No. 173 of 1994

Brisbane
[R. v. Martin]

BETWEEN:

T H E Q U E E N

v.

RAYMOND PAUL MARTIN Applicant

Fitzgerald P. McPherson JA. Pincus JA.

Judgment delivered 06/09/94

Reasons for judgment of the President and McPherson JA, separate concurring reasons of Pincus JA.

Application for leave to appeal refused.

CATCHWORDS:CRIMINAL LAW - Sentence - calculation of sentence - applicant sentenced at different times for a variety of offences to additional period of imprisonment cumulative with current sentence - extensive criminal history - whether calculation of total sentence manifestly excessive

Counsel:Mr. P. Ridgway, with him Mr. P. Bannister for the Crown
Applicant appeared on his own behalf
Solicitors:Director of Prosecutions for the Crown
Applicant appeared on his own behalf
Hearing Date:26/07/94

REASONS FOR JUDGMENT - FITZGERALD P. and McPHERSON JA.

Judgment delivered 06/09/94

The applicant, Raymond Paul Martin, applied for leave to appeal against two sentences, one imposed on him on 25 March 1994 in the District Court at Brisbane and the other imposed on him on 29 April 1994 in the Magistrates Court at Brisbane. At the hearing, he abandoned the former application, which was then formally refused.

Martin, who was born on 11 July 1963 and is aged 29 years, has an extensive criminal history for a wide variety of offences of dishonesty and other property offences, along with a number of other offences associated with escape from custody and unlawfully being at large. There are in all sixty-three offences extending over a period of twelve years. In that period, he has also failed to appear to answer charges in Queensland and New South Wales more than once. He has been regularly sentenced to terms of imprisonment, including several terms made cumulative on other sentences. When he was sentenced on the two occasions now material, he was already in jail for other offences.

The District Court sentence was imposed in the following

circumstances.

On 9 May 1992, Martin was found in possession of instruments of house-breaking by night. He pleaded guilty and came up for sentence on 5 February, 1993. By that time he was in prison in respect of other offences. Despite his extensive record, the prosecution did not then seek a further custodial sentence, and he was ordered to perform two hundred hours of community service. He was released from prison on 18 June 1993 and should have commenced the community service from 22 June 1993. He failed to do so despite written demands in June and July. He was then taken into custody in relation to other matters in mid-July and was released again in mid-September 1993. He failed thereafter to report for community service as directed, despite written demands.

In October 1993, he was due to appear in the Brisbane Magistrates Court in respect of other offences but failed to do so. A warrant issued, but he had gone interstate.

On 9 February 1994, he was arrested in New South Wales pursuant to the warrant issued in Brisbane in October 1993. He was returned to Queensland and convicted of an offence against the Bail Act in February 1994. On 15 February, he was sentenced to imprisonment for 5 months. He was serving that sentence when, on 25 March 1994, he was re-sentenced following his failure to perform community service in respect of the original offence of being found in possession of instruments of house-breaking by night on 9 May 1992.
On that occasion, he was sentenced to imprisonment for two months cumulative upon his then current sentence of five months imprisonment.
The Magistrates Court sentences on 29 April 1994 related to three offences of unlawful use of a motor vehicle between 19 and 23 June 1993. As is mentioned above, he had only been released from prison on 18 June. The three offences therefore occurred within a week of his discharge from prison. The sentence which he had been serving had been imposed in the District Court on 26 November 1992 in respect of an identical offence. The Magistrate imposed a sentence of imprisonment for twelve months on each count, which were made concurrent with each other but cumulative upon the term of five months then being served, which had been imposed on 15 February 1994. However, the Magistrate overlooked the additional two months imprisonment to which the applicant had been sentenced in the District Court on 25 March 1994. The effect of the Magistrate's sentence was accordingly only to add ten months actual imprisonment.

Before the Magistrate, the applicant's solicitor submitted that a sentence of twelve to eighteen months imprisonment would have been appropriate in the case of a prisoner who might be expected to be considered for parole but, since the applicant's criminal history was likely to prevent him from being considered for parole, a sentence of nine months cumulative would be appropriate. This reasoning is entirely fallacious. It is an extraordinary proposition that a man whose criminal history is so bad that he is unlikely to get parole should be given a lighter sentence than would normally be appropriate on the basis that he has been disadvantaged by his own previous misconduct.

Before this Court the applicant, who represented himself, said that he committed the three offences while on drugs and that, when the effect of the drugs passed, he contacted the owners to inform them of the whereabouts of their vehicles. It makes little difference whether this is taken into account in his favour, although it is to be noted that the applicant's accomplice crashed one of the vehicles and was apprehended by police and the applicant was easily identified as he had left his wallet in one of the other vehicles. The applicant also referred to a period from 2 September 1993 to 9 February 1994 as a period during which he committed no offences.

The Magistrate said that he made due allowance for the applicant's early pleas of guilty and full admissions, and took into account the time that the applicant had spent in custody in relation to these three offences, from 14 July to 2 September 1993. After allowance for such factors, he considered that the appropriate sentence was about fifteen months, but he gave a further discount because the applicant is unlikely to get parole. As indicated above, that further discount was inappropriate.
In any event, the additional imprisonment to which the applicant became liable by virtue of the Magistrate's sentences was only one month longer than the nine month period suggested by his own solicitor at sentencing. That aside, the applicant was treated extremely leniently, and has no legitimate cause for complaint.

The application for leave to appeal should be refused.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 6 September 1994

I have read the joint reasons for judgment of the President and McPherson J.A. The oral submissions made to us suggested that the applicant might not have fully understood the effect of the orders made by the magistrate. It is plain enough that the sentences imposed were not excessive. I agree that the application for leave to appeal should be refused.