R v Norton

[1995] QCA 277

IN THE COURT OF APPEAL [1995] QCA 277

SUPREME COURT OF QUEENSLAND

Appeal No 62 of 1995

Brisbane
[R. v. David Stuart NORTON]

Before Fitzgerald, P
de Jersey J
Byrne J

T H E Q U E E N
v.
DAVID STUART NORTON

(Applicant)

FITZGERALD P. DE JERSEY J.

BYRNE J.

J udgment delivered 16/06/1995

REASONS FOR JUDGMENT - THE COURT

Application for leave to appeal refused.

CATCHWORDS: AUTO THEFT - professionally run, commercial enterprise; pleas of guilty, but substantial, relevant previous; 7 years imprisonment not disturbed

Counsel:	T.D. Martin for the Applicant W. Clark for the Crown
Solicitors:	Robertson O'Gorman for the Applicant Queensland Director of Public Prosecutions for the Crown

Date/s of Hearing: 05/04/1995

JUDGMENT OF THE COURT

Judgment delivered 15/06/1995

The applicant, a 35 year old man, pleaded guilty in the District Court on 24 January, 1995 to a series of offences involving the dishonest treatment of motor vehicles: thirteen of unlawful possession of a motor vehicle, nine of unlawful possession with a circumstance of aggravation, three of stealing and one of receiving. The offences occurred between 31 August, 1993 and 13 August, 1994. He was sentenced to concurrent terms of seven years for the unlawful possessions, seven years for the unlawful possessions with aggravation, two years for stealing and two years for receiving. He applies for leave to appeal against those sentences.

The applicant was the principal in a large scale, professional auto theft enterprise. He ran it for about 12 months. The vehicles involved included family sedans, prime movers and semi-trailers. They were stolen and "treated", including erasing identification numbers and plates and substituting new ones. The value of the property involved in the charges was $925,000. Of that, $350,000 worth was damaged or otherwise irrecoverable. The convictions arose out of an investigation by the National Crime Authority. The vehicles were located at the applicant's rural property near Toowoomba. The applicant co-operated with the police to an extent, admitting to the theft of some of the vehicles and equipment found at the property, although he declined to identify the other persons involved.

It is important to look now to the applicant's prior criminal history. In March, 1989 he was sentenced at Brisbane to two years for receiving, false pretences and the possession of a motor vehicle with intent to deprive. Two weeks after his release on parole, he committed an assault occasioning bodily harm on 20 October, 1989, for which he was in January, 1990 sentenced to six months imprisonment. After he was released from that, he went to Western Australia, where he was convicted in February, 1991 for the theft of a prime mover and trailer (valued at $200,000) committed in early April, 1990, in fact within a month of his release from prison in Queensland. He was imprisoned in Western Australia for three years. He returned to Queensland where, within months, he started committing the instant offences. By the time of the sentencing on 24 January, 1995, he had been incarcerated again to serve the balance of the two year term of imprisonment imposed for the offences in March, 1989, on the basis presumably that he had breached the terms of his parole.

The learned Judge was addressed on the basis that as at 24 January, 1995, the applicant's then current full-time release date from prison was 22 March, 1996, with an earliest possible release date of 22 August, 1995. The sentences he imposed, seven years, commenced from 24 January, 1995. He could properly have ordered that the sentences commence at the expiration of the term then being served. In view of the applicant's criminal history, the sentencing Judge would reasonably have thought it likely that the applicant would serve in full or substantially in full the sentence then current - that is, until early 1996. In allowing the seven year sentence to run from 24 January, 1995, he has therefore on that basis effectively sentenced the applicant to at most a six year term in respect of these offences.

The learned Judge discounted the sentence he would otherwise have imposed to take account of the applicant's pleas of guilty upon an ex officio indictment. But for that and some other matters mentioned by counsel, he would, he said, have imposed 10 years. He did however reduce that to seven years, allowing for those features. As I have explained, allowing for the commencement date, that should be regarded as amounting to a term not exceeding six years.

Counsel for the applicant submitted, in essence, that the learned Judge proceeded from a base term, the 10 years, which was beyond the range of imprisonment open for such offences. He referred to Hoad (1989) 42 A Crim R 312, Williams CA 225/1989, Stead (1992) 62 A Crim R 40 and Partridge CA 108/1991. Each of those cases concerned an enterprise roughly comparable with this. The relevant sentences were seven years imprisonment to pleas of guilty in Hoad, seven years with a parole recommendation after two years to pleas of guilty in Williams, five years to pleas of guilty in Partridge, and six years following conviction by a jury in Stead, with cumulative four year terms in respect of some similar offences but as well, counts of official corruption.

While it was open to the applicant to contend that in working from a primary 10 year term the learned Judge adopted a stringent position which may be difficult to reconcile with any pattern emerging from the above cases, the fact is that allowing for the pleas of guilty and the other mitigating factors, he imposed, as explained earlier, an effective six year term. That was plainly within range, and an appropriate response to extreme criminal behaviour of this character committed by a person with a significantly bad past criminal history.

I would therefore refuse the application.