R v Morris

[1995] QCA 27

IN THE COURT OF APPEAL	[1995] QCA 027
SUPREME COURT OF QUEENSLAND

C.A. No. 409 of 1994.

Brisbane

[R v. Morris]

T H E Q U E E N

v.

GLEN WILLIAM MORRIS

Applicant

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Fitzgerald P.
Pincus J.A.

Dowsett J.

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Judgment delivered 24/02/1995

Joint Reasons for Judgment of Pincus J.A. and Dowsett J.; separate concurring
reasons of Fitzgerald P.

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

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CATCHWORDS:	CRIMINAL LAW - Sentence - offence committed while on parole - bad criminal history - time in custody before sentencing - s. 187 and s. 190 Corrective Services Act 1988.
Counsel:	Applicant represented himself. Mr P Ridgway for the respondent.
Solicitors:	Applicant represented himself. Director of Prosecutions for the respondent.

Hearing date:23/11/1994
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 24/02/1995

The circumstances giving rise to this application for leave to appeal against sentence are set out in the joint reasons for judgment of Pincus J.A. and Dowsett J.

The offences for which the applicant was sentenced were committed between 15 December 1993 and 20 May 1994. Throughout that period, he was on parole for other offences; he had been sentenced to three years' imprisonment on 9 August 1991 and had received a cumulative sentence of six months' imprisonment on 6 March 1992, giving rise to a release date of 9 February 1995. One of his complaints before this Court was that he had been in prison for four months awaiting sentence prior to 9 April 1991 and did not receive credit for that period when he was then sentenced. There is no reason to assume that the latter assertion is correct. More relevant for present purposes is that he was released on parole on 7 May 1993, when he still had 21 months of those sentences to serve.

After he committed the last of the present offences on 21 May 1994, he was quickly apprehended and returned to prison to serve the remainder of his previous sentences. According to the applicant, his criminal history is such that it is unlikely that he will be released on parole again until the full period of those sentences is served.

He had served a further four months of those sentences, leaving 17 months to serve, when he was sentenced for the present offences on 23 September 1994. He was then sentenced to four years' imprisonment on one offence and lesser terms on the others, with a recommendation that he be considered for parole two years from the date of sentencing. If that recommendation is acted on favourably to the applicant, he will serve an extra seven months for the present offences.

The applicant complained that the period of imprisonment from 21 May to 23 September 1994 was not taken into account in his present sentences, but plainly it was, in the sense that the sentencing judge was aware of it, and that it was time served under his previous sentences.

The applicant also complained that his prospects for release on parole were poor because of her criminal history and the aggregate length of his sentences and that he might have to serve the full four years to which he was sentenced in September. If he is not granted parole, the sentences then imposed will add 31 months to the period he was serving for the prior offences.

This was too much, he said, for the offences in question, especially because of his early plea and cooperation. Further, his co-accused was more leniently treated. Claims were also made related to his personal circumstances, including reference to his children and his aged, ailing parents.

None of the matters raised by the applicant persuade me that the sentence was outside the range of a proper sentencing discretion for a person with his criminal history.

I agree that the application should be refused.

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DOWSETT J.

Judgment delivered 24/02/1995

The applicant seeks leave to appeal against sentence, having been convicted in the District Court of three offences, breaking and entering with intent, stealing and receiving. The applicant, who was aged 42 at the time, pleaded guilty and was on 23 September 1994 sentenced to 4 years imprisonment in respect of the first of the offences, and to lesser periods of imprisonment in respect of the others. The applicant had been in custody for a little over 4 months before sentencing; the judge recommended consideration for parole 2 years from the date of sentencing.

According to the information placed before the primary judge, the applicant and another man called Halson were stopped by the police while driving in a vehicle along the road. The police found out that the registration plates had been stolen from another vehicle some months previously; that lead to the charge of receiving, which related to two license plates. The police noticed computer and stereo equipment in the back of the car and found more such equipment in the boot. The applicant claimed to own the property and said he had just picked it up from a mate's place. In further conversation with detectives, he repeated that claim and said he had bought the property from a person at West End, but did not know that person's last name. The property turned out to have been stolen that morning from a house which had been broken into; the complainant valued it at $20,000.

Some days later, the applicant admitted having broken into the complainant's house, saying that he did so at Halson's instigation. He said that the offence had been committed to help Halson.

To assess the effect of the sentences imposed, it is necessary to note that on 9 August 1991 the applicant was sentenced to 3 years imprisonment on other charges and on 6 March 1992 received a sentence of a further 6 months imprisonment. He was released on parole on 7 May 1993; his parole would have come to an end on 9 February 1995. That is, at the time of his release on parole there was still about 21 months of his sentence left to serve. Under s. 187 of the Corrective Services Act 1988, the imposition of the sentences presently in question cancelled his parole and the effect of that, under s. 190, was that he became liable to serve the unexpired portion of his existing terms of imprisonment - i.e. the period of about 21 months. Under s. 190(2) of the Act, the Queensland Community Corrections Board has power to direct that the applicant serve part only of the unexpired portion of the term; there is nothing before the Court to indicate whether or not such an order is likely to be made.

The judge proceeded on the assumption that the applicant would have to serve "at the very worst" 21 months and decided to impose a sentence which would, his Honour believed, have the effect of making the applicant serve an extra 6 months.

Looking first at the head sentence, the effect of what the judge did was to impose an extra sentence of about 2 years and 3 months. His Honour recommended parole after 2 years. His intention of making the applicant serve an extra 6 months would be fulfilled if it were correct (as was suggested during argument below) that the applicant might have to serve only 18 months of the 21 months under his existing sentences.

But if that were not so and the applicant had to serve the whole 21 months, then, subject to parole being granted under the judge's recommendation, the applicant would serve only another 3 months by reason of the additional sentences.

The applicant has a bad record for drug offences and offences of dishonesty. In the argument advanced below it was accepted that he has a bad criminal history, but that was sought to be explained by his being a chronic heroin addict. The offences presently in question, however, are not said by the applicant to be due to the taking of heroin; the contention is that the applicant was moved by a desire to assist a friend.

It was argued that a 4 year sentence is too heavy. For the reasons which have been explained, the sentence is equivalent to an additional 2 years and 3 months. Further, there is the recommendation for parole which has been mentioned.

It must be conceded that, from the applicant's point of view, the result of his having committed these recent offences has been to make him likely to serve, say, about 2 years imprisonment. Further, there was a period of a little over 4 months spent in custody, which the judge took into account in fixing the sentences. But it is too simple a view to regard the extra imprisonment as flowing only from the subject offences; to a substantial extent the applicant will be paying, one could say, the balance of the price for the offences he committed in 1991. The case is one in which the judge was entitled to regard the applicant as a persistent offender whose conduct required sharp correction. There is no ground for interfering with the sentences imposed, and the application must be refused.