R v McQuilty

[1998] QCA 109

IN THE COURT OF APPEAL	[1998] QCA
109
SUPREME COURT OF QUEENSLAND
Brisbane [R v McQuilty]	C.A. No. 23 of 1998

THE QUEEN

v

ALAN JOHN McQUILTY

(Applicant) Appellant

Fitzgerald P
Pincus JA

Muir J

Judgment delivered 29 May 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL
ALLOWED.

1.          ORDER THAT THE SENTENCES IMPOSED IN RESPECT OF THE 1996 AND 1997 OFFENCES BE SERVED CUMULATIVELY UPON THE SENTENCE TO BE SERVED IN CONSEQUENCE OF THE ORDER THAT SUSPENDED TERMS OF IMPRISONMENT OF 4 MONTHS IMPOSED IN 1994 BE SERVED;

2.          IN LIEU OF THE RECOMMENDATION FOR PAROLE MADE BELOW, RECOMMEND THAT THE APPLICANT BE ELIGIBLE FOR RELEASE ON PAROLE AFTER HAVING SERVED 21 MONTHS OF THE SENTENCES IMPOSED IN RESPECT OF THE 1996 AND 1997 OFFENCES.

SENTENCES IMPOSED BELOW OTHERWISE CONFIRMED.

CATCHWORDS:	CRIMINAL LAW - leave to appeal against sentence - s.157(2) Penalties and Sentences Act 1992 (Qld) - power of court to make recommendation for parole where it is ordered that the offender serve a period of suspended imprisonment.
Counsel:	The applicant/appellant appeared on his own behalf Mr M.C. Chowdhury for the respondent
Solicitors:	The applicant/appellant appeared on his own behalf. Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	7 April 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 29 May 1998

The applicant in this application for leave to appeal against sentence pleaded guilty in the District Court to seven charges of breaking entering and stealing, six charges of stealing, seven charges of unlawful use of a motor vehicle with a circumstance of aggravation and one charge of wilful damage. There were 21 counts in all covering a period from 31 August 1996 to 17 May 1997. Counts 20 and 21 concerned the stealing of a truck having a value of some $18,000 and a backhoe having a value of approximately $100,000. The truck was stolen for the purpose of transporting the backhoe. The remaining 19 counts encompassed the stealing of some 11 ride-on mowers with values ranging from $3,000 to $6,000 and five motor vehicles. The ride-on mowers were stolen by the applicant in the course of a pattern of organised and systematic theft engaged in by him for his own profit. The truck and backhoe, after being unlawfully taken by the applicant, were supplied by him to a person by the name of Friske whose activities were, at the time of the transaction between himself and the applicant, the subject of police undercover operations. The truck and backhoe were recovered by the police, as was a substantial amount of the other property the subject of the charges, but some $31,800 worth of property remains unrecovered.

Upon being apprehended in respect of the matters the subject of counts 20 and 21, the applicant confessed to the remaining offences, co-operated with the police (without providing evidence to implicate Friske or another person involved in some of the applicant's activities) and pleaded guilty to the charges at an early stage.

The applicant was sentenced to:

• five years imprisonment for unlawful use of the truck with a circumstance of aggravation;

• four years imprisonment on the remaining counts of unlawful use of a motor vehicle with a circumstance of aggravation;

• three years imprisonment on the stealing counts;

• three years imprisonment on the count of breaking, entering and stealing; and

• six months imprisonment on a count of wilful damage.

All terms were made concurrent with each other.

Some of the offences were committed within the operative period of suspended sentences imposed on the applicant on 7 November 1994 and 23 November 1994, each for unlawful use of a motor vehicle. In both cases, the applicant was sentenced to a term of imprisonment of four months suspended for two years. The learned sentencing judge directed that those suspended sentences be served concurrently with each other, but cumulatively with the sentences imposed in respect of the 21 counts before him.

The accused has a substantial criminal history which includes convictions for stealing, unlawful use of a motor vehicle, breaking and entering a place with intent and receiving. He was sentenced on 30 July 1993 to an eight months term of imprisonment on charges of receiving and possession of a motor vehicle with intent to deprive.

The applicant appeared in person. The points he made were, in substance, as

follows:

• He co-operated with the police immediately upon his apprehension and made an early plea of guilty.

• He was not the principal driving force or mastermind of the criminal activity; that was Friske's role.

• He is married with two young children aged two and six years.

• His remorse is demonstrated by his conduct referred to above. His motivation for revealing the offences other than those the subject of charges 20 and 21 was so that he could “put them behind him”.

• Friske received a three year term of imprisonment for his role in receiving goods from the applicant.

• The Crown Prosecutor submitted to the learned sentencing judge that there should be a head sentence “in the order of four years imprisonment, with a recommendation to reflect” an early plea.

The learned sentencing judge took the view that the scope and commercial nature of the applicant's criminal activities required a sentence longer than four years, particularly having regard to the applicant's prior criminal history and the fact that at least some of the offences occurred during the terms of the suspended sentences. The learned sentencing judge was quite justified in reaching such a conclusion. The decisions to which the Court was referred, such as R v Tanner (CA No. 53 of 1990, 21 May 1990) and R v Smerdon (CA No. 258 of 1996, 12 November 1996) show that the sentences under consideration were not excessive or out of step with sentences imposed in comparable circumstances.

Nor is there anything in the way in which Friske was treated which would require interference with the applicant's sentence in order to effect parity between it and Friske's sentence. The applicant was sentenced before Friske. Friske pleaded guilty and was sentenced in respect of five counts of supplying cannabis; one count of possession of cannabis; one count of possession of a thing used in connection with the commission of a crime (being a motor vehicle); 12 counts of receiving stolen property and one count of false pretences. The term of imprisonment imposed in respect of each of the counts of receiving was three years and it was ordered that each term be served concurrently with the others. It was recommended that Friske be eligible for release on parole after serving six months of the sentences imposed in respect of those and other matters. All of the property, the subject of the receiving charges, had been restored to its owners by the time of sentencing. Friske's prior criminal history, compared with that of the applicant, was quite minor and involved no term of imprisonment. He had a good work history and a strong record of selfless involvement in community affairs. There is thus nothing resulting from Friske's sentence which would serve to necessitate any alteration to the applicant's sentence.

The learned trial judge however, made no recommendation for parole but recommended that the applicant “be considered for parole after serving 21 months” of the term of his sentence. He expressly stated that he was not making a recommendation for parole.

The Court’s power which the judge had in mind is that conferred by s.157(2) of the Penalties and Sentences Act 1992 which says that the Court “may recommend that the offender be eligible for release on parole...”. It seems preferable to follow the wording of the Act. It is noted that there is no power to make a recommendation under s. 157(2) where the Court makes an order that an offender serve a period of suspended imprisonment (Waters C.A. No. 379 of 1997, 9 December 1997). In view of the possibility that what the judge said about parole might be misconstrued it is necessary to grant the application for leave to appeal and allow the appeal, in the following respects, otherwise confirming the orders made below:

1.          Order that the sentences imposed in respect of the 1996 and 1997 offences be served cumulatively upon the sentence to be served in consequence of the order that suspended terms of imprisonment of 4 months imposed in 1994 be served;

2.          In lieu of the recommendation for parole made below, recommend that the applicant be eligible for release on parole after having served 21 months of the sentences imposed in respect of the 1996 and 1997 offences.