R v Millar

[2004] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:	R v Millar [2004] QCA 25
PARTIES:	R v MILLAR, Andrew John (applicant)
FILE NO/S:	CA No 373 of 2003 DC No 2698 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	20 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2004
JUDGES:	McMurdo P and McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION – where applicant convicted of seven counts of receiving with a circumstance of aggravation and seven counts of fraud – where offences committed while subject to suspended sentence and while on Supreme Court bail – where sentenced to 2½ years imprisonment to be served cumulatively on previous term of imprisonment of two years with recommendation for post- prison community based release after nine months – where extensive criminal history – whether sentence imposed should have been made concurrent with previous sentence – whether sentence imposed manifestly excessive
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: I agree with Williams JA that the application for leave to appeal against sentence should be dismissed for the reasons he gives.

2. McPHERSON JA: I agree with the reasons of Williams JA for dismissing the application.

3. WILLIAMS JA: The applicant pleaded guilty in the District Court in Brisbane on 3 November 2003 to seven counts of receiving with a circumstance of aggravation and seven counts of fraud. The offences were committed between 30 September 2001 and 27 May 2002. He was sentenced on 6 November 2003 to 2½ years imprisonment on each of the receiving counts, and 18 months imprisonment on each of the fraud counts. Those sentences were ordered to be served concurrently, but cumulatively upon a term of imprisonment imposed on 14 June 2002 of two years imprisonment. There followed a recommendation for post-prison community based release after serving nine months. The applicant seeks leave to appeal against the sentences so imposed on the grounds that the sentence overall is manifestly excessive and the sentencing judge took into account irrelevant considerations.

4. Each of the offences involved the applicant receiving property which had been stolen after premises had been broken and entered, and then pawning the property so received for cash. A total of $1,045.00 was paid to the applicant by the pawnbrokers, though the true value of the property would have been significantly above that.

5. The appellant was born on 1 December 1970 making him age 30 – 31 when the offences were committed and 32 when sentenced. His counsel informed the sentencing judge that the applicant had not been working in the six months leading up to the sentence imposed on him in 2002 (to which reference will be made later), but up until then he had worked largely in selling real estate and as a call centre operator. It was also put to the sentencing judge that the applicant had a good upbringing, and had a strong relationship with his parents with whom he could again live after release from custody.

6. Of particular significance when it came to determining the appropriate sentence was the applicant’s prior criminal history. He was placed on two years probation on 19 December 1996 on four charges of false pretences and four charges of stealing. He was dealt with for a breach of that probation order on 21 May 1997; he was ordered to pay compensation and the probation order was made to continue. Then on 31 July 1997 he was placed on three years probation and given 240 hours community service with respect to five counts of stealing and five of false pretences. That was followed by the imposition of a $1,000.00 fine on 27 January 1998 for one count of possessing tainted property and one count of imposition. Then on 22 May 1998 he was dealt with for breach of the probation imposed on 31 July 1997 by the commission of 18 offences of fraud, one of stealing and two of false pretences. He was then given five months imprisonment and placed on 12 months probation. There was a further breach of probation recorded on 13 January 1999 and probation was extended for 12 months. On 21 August 2000 he was dealt with for one count of receiving and one count of fraud; for those offences he was sentenced to nine months imprisonment, wholly suspended for three years and a compensation order made. Finally on 14 June 2002 he faced one count of stalking, one of assault and one of dangerous operation of a motor vehicle. The head sentence was imposed with respect to the offence of stalking, namely two years imprisonment. The conviction with respect to those offences constituted a breach of the suspended sentence imposed on 21 August 2000 and he was ordered to serve that term of nine months imprisonment concurrently with the two years imposed for the stalking.

7. All the offences with which the court is now concerned were committed during the operational period of the suspended sentence imposed in August 2000. Further, the applicant was on Supreme Court bail granted in June 2001 for the offence of stalking when each of the offences with which the court is now concerned were committed.

8. The committal hearing with respect to the charges now in issue concluded in February 2003 when the applicant was committed for trail. Material was placed before the sentencing judge which indicated that in about December 2002 the applicant had indicated to the Director of Public Prosecutions that he would consider a plea if the breaking and entering charges were withdrawn, all charges relating to the complainant Stone were withdrawn and the Director of Public Prosecutions provided a sentencing range with which the applicant agreed. The Office of the Director of Public Prosecutions indicated that a plea would not be accepted on that basis. Thereafter the matter proceeded as if for trial.

9. The learned sentencing judge stated in his sentencing remarks that he had reviewed the matter on a number of times before trial. He noted that there were repeated applications for the trial to be adjourned on the ground that there was a need for further investigation of certain matters.

10. The matter was listed for trial on 3 November 2003. On that date a nolle prosequi was entered with respect to one count of stealing and a number of charges of breaking and entering on the indictment. The prosecution then accepted the applicant’s pleas to the charges indicated above in full satisfaction of the indictment. That did involve dropping the charges with respect to Stone to which reference has been made.

11. In the course of his sentencing remarks the learned District Court judge said: “At the committal proceedings in January of this year you might have pleaded guilty to the current charges to which you have pleaded guilty. Had you done so, you would have been sentenced, I infer, a long time ago and the prosecution may well have accepted that in full discharge of all charges. However, you asserted to the Magistrate that you needed time to investigate these matters and you could not really investigate them whilst you were in custody. The Magistrate refused bail and remanded you in custody but you were, of course, in custody under the sentence imposed in June of 2002.”

12. However, importantly, the learned sentencing judge also said at the outset of his remarks:

    “I propose to give effect to your plea of guilty on the first day of the trial by making a recommendation for an early release. So your plea of guilty will be taken into account.”

13. In the course of the sentencing remarks it was noted that offences of this type “are very prevalent offences and serious”, that these were not “unsophisticated offences”, and the sentence to be imposed “needs to deter you and other persons who are like minded from committing further offences whilst on bail and the subject of a suspended sentence.” It was the latter consideration which convinced the learned sentencing judge that the sentences should be made cumulative on the sentence imposed in June 2002.

14. Counsel for the respondent provided the court with a calculation of the applicant’s sentence made by the Department of Corrective Services which indicates that the date for eligibility for post-prison community based release is 6 August 2004. That was accepted as being accurate for the purposes of this application.

15. The applicant provided the court with a lengthy outline of argument in support of his contention that the sentence was manifestly excessive and that the learned sentencing judge took irrelevant considerations into account. He also addressed a number of submissions to the court which went beyond what was contained in that outline.

16. Apparently the applicant has on a number of occasions sought judicial review of decisions of the Department of Corrective Services with respect to his entitlement to remissions under his sentences. He contended that the success of those applications would impact on his parole eligibility date. That may well be so, but they are not matters to which this court can have regard on the hearing of this application for leave to appeal against the sentence imposed on 6 November 2003.

17. The principal substantive submission made by the applicant was that the learned judge erred in not ordering the sentences to be concurrent. He claims that he would have had an entitlement to apply for post-prison community based release with respect to the sentence imposed on 14 June 2002 some time in the first half of 2003 were it not for the fact that he was on remand with respect to the current charges. He therefore submits that in some way the time so spent in custody should be brought into account as time spent in custody with respect to the current offences.

18. The problem for the applicant is that the current offences were committed, as already noted, whilst he was subject to a suspended sentence and on bail. Given his criminal history, which contains numerous offences of dishonesty, it is unlikely that he would have been released significantly early under the sentence imposed on 14 June 2002.

19. The written outline on which the applicant relies and his oral submissions to this court do not indicate that he is remorseful and has addressed his offending ways. That is indicated by the observation in his written outline that had he “not been placed in the position of being on Supreme Court bail from June 2001 that the offences with which [he] was sentenced for on November 6 2003 may not have occurred, it is submitted that the reasoning for this is that the applicant would otherwise have not been subject to the ongoing stress of the outstanding proceedings”. In oral submissions he sought to make some mileage from the fact that the stolen property which he received had been removed from garages adjoining dwelling houses rather than from the dwelling houses themselves.

20. Given that these serious offences were committed while subject to a suspended sentence for previous offences of dishonesty, and also whilst on Supreme Court bail for the serious offence of stalking, and given the applicant’s prior criminal history, it was not inappropriate for the learned sentencing judge to make the sentence imposed for the offences in question cumulative on the sentence imposed on 14 June 2002. Particularly when regard is had to the recommendation for eligibility for release after nine months the sentence could be said to be moderate. Whether or not the applicant is released on 6 August 2004 is a matter for the parole authorities and dependent upon his conduct in prison and whether he can demonstrate probable rehabilitation from his previous offending ways.

21. In the circumstances grounds are not made out for interfering with the sentence imposed. I would dismiss the application.