R v. Murray

[2007] QCA 422

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murray [2007] QCA 422

PARTIES:

R
v
MURRAY, Richard David
(applicant)

FILE NO/S:

CA No 212 of 2007
SC 26 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

23 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2007

JUDGES:

Williams and Muir JJA, McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – where applicant given wholly suspended sentence for possession of methylamphetamine – where applicant committed 22 offences within operational period – where applicant ordered to serve whole of suspended sentence – where parole date fixed as the last day of applicant’s imprisonment – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 147(2)

COUNSEL:

Applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA:  I will ask Justice McMurdo to deliver his reasons first.

McMURDO J:  On 4 February 2003, the applicant was convicted upon his plea of guilty to an ex officio indictment of an offence of the unlawful possession of methylamphetamine with the quantity exceeding two grams.

He was then sentenced to one year's imprisonment to be suspended on 25 June 2003 with an operational period of three years.  However during that period he committed some 22 offences.  Some were drug offences, others involved receiving stolen property or possession of tainted property.  All are likely to have been drug related.  For these offences, he was originally sentenced to two years and five months' imprisonment which was wholly suspended.  He was the subject of an intensive drug rehabilitation order on 30 August 2004.

There was a further offence resulting in a further intensive drug rehabilitation order on 10 February 2006.  On 16 March 2007, the intensive drug rehabilitation order was vacated and he was placed on 12 months' probation for these offences.  This demonstrated substantial compliance with his rehabilitation program.

Within a few days of commencement of his probation period, he is alleged to have reoffended.  This is the subject of outstanding charges of burglary and receiving stolen property.  He was granted bail on those charges but breached his undertakings to appear.  For that bail offence, he was gaoled for two months on 26 June 2007 and the parole release date was set at 21 August 2007.  He is also alleged to have reoffended in June 2007 by assaulting a police officer.

In these circumstances, on 23 August 2007, he returned to the Supreme Court to be dealt with for the suspended sentence imposed in 2003. The learned sentencing Judge ordered the applicant to serve the whole of the suspended imprisonment. The applicant's counsel agreed that he should be ordered to serve the whole of the suspended term, correctly conceding that in the circumstances it would not be unjust to do so, so that this order was required by Section 147(2) of the Penalties and Sentences Act 1992.

His submission was that he should be paroled immediately, especially having regard to his completion of the drug rehabilitation program.  His Honour did not accept that and fixed the parole release date as the last day of his term, 25 March 2008.

The applicant, who is now self represented, applies for leave to appeal on the ground that the sentence is manifestly excessive.  As I have said, the applicant's counsel was right to concede to his Honour that the order required by subsection 147(2) was that he serve the whole of the suspended imprisonment.  In particular, the number of offences within the operational period and the seriousness of at least some of them required this notwithstanding his efforts at rehabilitation.

The question then is whether his Honour was entitled to deny him any parole.  His Honour described the applicant as having an appalling record of offending and compliance with Court orders regarding bail undertakings.  Putting the matter of bail undertakings on one side, that description otherwise seems to be justified.  He has an extensive criminal history even pre-dating 2003.

His Honour remarked that the commission of so many offences within the operational period showed that the applicant cannot be trusted at large without there being a very great risk of offending.  His Honour referred to mitigating factors and in particular the applicant's successful completion of the drug program, his family's support, and his job prospects and his Honour concluded that:

"The only way in which one can be sure that the offending will not continue is for Mr Murray to serve the full amount of the part of the suspended sentence which remains to be served."

As I read those comments, his Honour was of the view that there would be an unacceptable risk of reoffending from any earlier release on parole.  That conclusion was justified by the evidence and his Honour was thereby entitled to make the orders which he did. 
I would dismiss the application.

WILLIAMS JA:  I agree.

MUIR JA:  I agree.

WILLIAMS JA:  The order of the Court is that the application is dismissed.

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