R v Mickelo

[1995] QCA 468

IN THE COURT OF APPEAL	[1995] QCA 468
SUPREME COURT OF QUEENSLAND

C.A. No. 196 of 1995

Brisbane

Before	Davies J.A. McPherson J.A. Fryberg J.
[R. v. Mickelo]

T H E Q U E E N

v.

DAVID LESLIE MICKELO

(Appellant)

Davies J.A.
McPherson J.A.

Fryberg J.

Judgment delivered 17/10/95
Joint reasons for judgment by McPherson & Davies JJ.A. Separate reasons by Fryberg
J. dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED; APPEAL ALLOWED BY SETTING ASIDE THE SENTENCE OF 9 YEARS AND SUBSTITUTING A SENTENCE OF 6 YEARS TO BE SERVED CUMULATIVELY ON COMPLETION OF THE SENTENCES WHICH THE APPELLANT WAS UNDERGOING ON 21 APRIL 1995. FURTHER ORDERED THAT THE DATE ON OR AFTER WHICH THE APPELLANT BE CONSIDERED FOR PAROLE BE 25 OCTOBER 1999.

CATCHWORDS	CRIMINAL LAW - Robbery in company with use of personal violence - Sufficiency of identification evidence - Whether verdict unsafe or unsatisfactory - Whether sentence manifestly excessive.
Counsel:	T. Rafter for the appellant B. Campbell for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director or Public Prosecutions for the respondent
Hearing Date:	14 August 1995

JOINT REASONS FOR JUDGMENT - McPHERSON & DAVIES JJ.A.

Judgment delivered the 17th day of October 1995

The appellant was convicted after a trial in the District Court of a count of robbery in company with the use of personal violence. He was sentenced to imprisonment for 9 years.

The offence was committed in the early hours of 15 April 1994 when the complainant was walking along Alfred Street, Fortitude Valley, after spending time at a Brunswick Street nightclub. He was set upon by, as he thought, four individuals, who felled him to the ground, punched and kicked him, and stole his wallet. The complainant was not able to identify his assailant except to say he thought they were "Aboriginal blokes". However, a Mr Hunter, who was parked in his taxi in Alfred Street, saw the attack take place and claimed to have followed the appellant.

Mr Hunter's evidence was that he saw the complainant walking past his taxi and looked at him because he thought he might be a fare. As he was watching, another two men came along the street after the complainant and appeared to be following him. One of them hit the complainant on the back of the head bringing him to the ground. They then began punching and kicking him and took his wallet. Mr Hunter got out of his cab and ran towards them shouting at them. The two assailants took off down Constance Street, and Hunter raced back to his cab and called the police. Then he picked up the complainant and put him in his cab and drove after the two men.

They went down Constance Street and he saw them turn into Wickham Street. It is a one-way street into which Hunter was not entitled to drive from that end, so he went round the block and came into it from the other direction. There he saw the two assailants, in the company of a woman, near the entrance to the Brunswick Street Mall, He turned his cab into Brunswick Street, and hailed a passing police car.

When Hunter first saw the two men he noticed that one of them was wearing a red baseball cap and a shirt which appeared "greyish" with an emblem on it. According to police evidence, he gave them a description and they activated a video camera in the Mall only a moment before the person so described walked into view. There was no dispute at the trial that the individual recorded by the video camera was the appellant. He was wearing a red baseball cap and a light-coloured T-shirt with an emblem. The shirt had splashes of blood on it which, on scientific analysis, was found to tally with the complainant's blood. It was of a type having characteristics occurring on average in 1/470 individuals of the Caucasian population and 1/495 of the Aboriginal population.

When first spoken to by police the appellant said he had been asleep in the Mall until wakened by other police. The video camera gave the lie to that account. At the trial he said that he had swapped shirts with someone named Paul Jones, so that when apprehended he was wearing the latter's shirt. He did not recall speaking to the police, nor did he know how he came to be wearing the red cap, although he agreed that the video tape showed him wearing it.

In summing up, the learned trial judge stressed weaknesses in the identification evidence, basing his directions in that regard upon a written list of matters prepared by defence counsel. His Honour gave the appropriate warnings. There was at the trial no application for any redirection on that subject. It was plainly open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty. There is no proper basis on which it can be said that the verdict was unsafe or unsatisfactory.

The appeal against conviction must be dismissed.
There is also an application for leave to appeal against the sentence of

imprisonment for 9 years. The appellant was sentenced on 21 April 1995, when he was 32 years old. He has an extensive criminal history dating back to December 1983. It includes numerous instances of assaulting police and wilful damage, and at least one instance of assault occasioning bodily harm for which, on 10 October 1991, he was sentenced to imprisonment for nine months, as well as stealing and associated offences of dishonesty. What is more important for present purposes, he sustained a conviction in March 1990 for a similar offence of stealing with actual violence whilst in company and was sentenced to imprisonment for 6 years. He was released on parole on 29 October 1993. His parole was cancelled on 15 November 1993 because of failure to report, but he remained at large until September 1994, during which time he committed the subject offence in April 1994.

The complainant was set upon from behind in the night by two assailants and he was brutally punched and kicked while on the ground, sustaining injuries to the nose and face and other soft tissues. His injuries might well have been worse if Mr Hunter had not intervened. Nevertheless, and despite the appellant's unsatisfactory record, which includes breaches of probation and of the Bail Act, a sentence of 9 years imprisonment, even for a second instance of street robbery, appears to be a heavy penalty. It is more in line with what might be expected for a serious first, or perhaps even a second, offence of bank robbery or the like.

The sentence here was not made cumulative, but was left to be concurrent with the outstanding period of imprisonment, which was still being served by the appellant, in consequence of revocation of his parole in respect of the earlier robbery as well as the nine month sentence imposed for bodily harm in October 1991. It may be said that, in that respect, the sentence of 9 years imposed on this occasion was to some extent mitigated; but it nevertheless tends to move the bench mark for head sentences for offences of this kind to a substantially higher level.

According to the Corrective Service Manager's calculation the appellant cannot expect his full-time discharge until 28 April 2004 and his earliest discharge date with remissions is 22 April 2001. The earliest date at which he may hope for parole is 25 October 1999. At the time of his standing for sentence on 21 April 1995 he still had to serve a further 1 year and 8 months under his two earlier sentences. His earliest discharge date before this sentence would therefore have been November or December 1996.

The practical effect of the subject sentence therefore was to add a term of about 7 years and 4 months to his existing sentence, and to defer parole for at least 4½ years. It would we think have been preferable to have made the head sentence shorter but cumulative on the sentences he was already serving, while leaving the expected parole date at its present point, which is 25 October 1999. There is, of course, no guarantee that he will be paroled on or about that date.

We will allow the appeal against sentence by setting aside the sentence of 9 years and substituting a sentence of 6 years to be served cumulatively on completion of the sentences which the appellant was undergoing on 21 April 1995. We order that the date on or after which he be considered for parole be 25 October 1999.

The appeal against conviction is dismissed.

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 17th day of October, 1995

For the reasons given by Davies and McPherson JJ.A., the appeal against conviction should

be dismissed.

There is also an application for leave to appeal against sentence. The sentence imposed by the learned District Court judge was one of nine years imprisonment. There was no recommendation in relation to parole. At the time of sentencing the applicant was serving a period of imprisonment, in respect of which no recommendation for parole had been made. Under the Penalties and Sentences Act 1992 ("the Act")1 , the sentence imposed by the judge is to be served concurrently with the existing sentence.

The stated ground of the appeal against sentence is that the sentence is manifestly excessive. In considering that ground, it would be necessary to take into account the actual operation of the sentence, having regard to the applicant's existing sentence. In particular it would be necessary to have regard not only to the nominal head term but also to the net head term and to the effect of the omission from the order of any recommendation relating to eligibility for release on parole. However, during argument before us the question was raised whether a cumulative sentence ought to have been imposed. I understood both counsel to concede that the case was one which called for a cumulative sentence. It is apparent from the sentencing remarks that the learned trial judge failed to give any consideration to this possibility. For this reason, I think that his discretion has not been properly exercised and that we should reconsider the question of sentence ourselves. It is therefore unnecessary for me to consider whether a net sentence of seven years and four months (or any other sentence) would in the circumstances of this case be manifestly excessive.

In my judgment, this case is clearly one where the sentence imposed should be cumulative. Having regard to the fact that a sentence of six years imposed cumulatively would not commence until November 1996 at the earliest2, I would concur in the substitution of a sentence of six years to be served cumulatively on completion of the sentences which the appellant was undergoing on 21st April 1995. It is true that at first sight it may seem odd to impose no greater head sentence than was imposed in respect of the previous occasion on which the applicant committed an indistinguishable offence. However the severity of the sentence must be measured having regard to its total impact, and that is not to be done merely by having regard to the head sentence. Moreover, recidivism cannot be dealt with by continually increasing the term of imprisonment; there comes a point of diminishing return.

The question then arises what recommendation for parole ought to be made. The applicant has shown no remorse for his conduct. He was guilty of a cowardly and vicious attack, committed while he was on parole. In addition, his criminal history shows that he was sentenced to two months imprisonment for breaching the conditions of leave of absence granted to him in September 1992. He must in my opinion now serve a period of imprisonment which reflects these factors before becoming eligible for parole again. In my judgment the purposes of sentencing3 would be defeated by releasing him on parole before he has served a substantial part of the cumulative sentence which we are now imposing.

Because no recommendation has been made under s.157 of the Act in respect of the imprisonment which the applicant was serving when he came before the District Court, the power of that court to make a recommendation arose under s.157(2) of the Act, not s.157(3)4. The power of this Court is the same5. The recommendation which we make must be in respect of the term of imprisonment which we are imposing. The period which we recommend must therefore be a period which commences when that term commences and expires not later than the expiry of that term.

It is not possible at present to say precisely when the term of imprisonment which we are imposing will commence. That is because it is unclear what remissions (if any) will be granted to the applicant by the Commission in respect of his existing sentences6. We were furnished with a calculation made by the Commission which seems to show that if the applicant were allowed remissions for good conduct and industry and for Christmas Day as provided in the regulations, he would be discharged from his existing period of imprisonment on 5th November 1996. If he were to earn other remissions (possible albeit unlikely) that date might be earlier. The same calculation stated that the applicant's date of "full time discharge" was 23rd December 1996; but that calculation assumed that he would be granted remissions for good behaviour and industry of some 9½ months in respect of that part of his imprisonment served subsequent to his rearrest in October 1993. It may be that by reason of his breach of the requirements of his parole it is impossible for him to satisfy the requirements of the regulations relating to good conduct remissions. It is unnecessary to decide whether that it is so or not, for plainly this is not a case where it should be assumed that he will become entitled to the benefit of such remissions. The latest date for his discharge without remission on his existing sentences of imprisonment is about mid-August 1997. In other words, the sentence which we are imposing may commence on or slightly before 5th November 1996 at the earliest or about mid-August 1997 at the latest or on some date in between.

That fact points out the difficulty which arises if a recommendation in respect of parole is made by specifying a date upon which the applicant should become eligible for parole. If a date is specified, the actual period may vary considerably depending upon the exercise of a discretion by the Corrective Services Commission or its delegate. It does not seem to me that that is the intended effect of s.157 of the Act. Moreover the power conferred by s.157(2) is to make a recommendation that the offender be eligible for release on parole after having served "such part of the term of imprisonment" as the court specifies. That wording does not seem to me to permit a recommendation to be made by reference to a date. The position may be otherwise when a recommendation is being made under s.157(3), for then a new recommendation starts on the day it is made7 and the problem which arises in the present case cannot arise8.

In the circumstances of the present case, we should in my judgment recommend that the applicant be eligible for release on parole after having served 3 years of the term of imprisonment which we are imposing. That is a period equal to half of the term. The consequence of that recommendation is that the applicant will become eligible for parole at some time between approximately 5th November 1999 and mid-August in the year 2000.

Even if it were possible under s.157(2) to make a recommendation by reference to a date, I could not agree in recommending a date which might have the effect that the applicant becomes eligible for parole after serving less than 2 years and 3 months of the sentence of 6 years cumulative which we are imposing. I can see no foundation for such leniency in anything that has been put before us. The only reason advanced to us for selecting 25th October 1999 as the date which we should recommend was the contention that under the District Court order as it presently stands that is when the applicant would become eligible for parole. That does not seem to me a sufficient reason to make a recommendation for a period less than half the length of the term of imprisonment which we are imposing.

However the effect upon the present position of the order which I have proposed would be to postpone to some extent the earliest date upon which the applicant could become eligible for parole. That might be seen as increasing the severity of the penalty presently imposed upon him. That being so, fairness requires that the applicant be afforded the opportunity to withdraw his application for leave to appeal if he so wishes. If he does not wish to do so, I would allow the application and the appeal. I would order that the sentence imposed by the District Court be set aside and that in lieu a sentence of 6 years be substituted, to be served cumulatively on completion of the sentences which the applicant was undergoing on 21st April 1995. I would order that he be eligible for release on parole after having served 3 years of that term.

1       Section 155.

2       Possibly it would be later - see below.

3 See s.9 of the Act.

1. R v Doyle, unreported, C.A. 454/93, 6.4.94.

2. Criminal Code s.668E.

6       See Corrective Services Regulations 1989, regs. 21-28.

7 Section 157(5)(b).

8       Compare R v Page and Renton, unreported, C.A. 115/94, 99/94, 13.7.94.