R v O'Grady

[2006] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Grady [2006] QCA 13

PARTIES:

R
v
O’GRADY, Jonathan Joseph
(applicant)

FILE NO/S:

CA No 277 of 2006
DC No 367 of 2001
DC No 399 of 2005
DC No 421 of 2005
DC No 528 of 2005
DC No 529 of 2005
DC No 530 of 2005
DC No 531 of 2005
DC No 532 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

8 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2006

JUDGES:

de Jersey CJ, McPherson and Jerrard 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 sentences refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – where applicant pleaded guilty to four counts of entering premises with intent, three counts of stealing, two counts of unlawful use of a motor vehicle, one count of serious assault, three counts of burglary and other summary offences – where applicant had prior criminal history including term of imprisonment – whether sentencing for multiple offences can be approached individually or in totality – whether the totality of the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 340(a)

COUNSEL:

R A East for the applicant
S G Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 10 October 2005.  He pleaded guilty to charges contained in two indictments.  The first contained counts of entering premises with intent and stealing.  Those offences were committed on 22 March 2004. 

The second indictment contained eleven counts.  Three of entering premises with intent, two of the unlawful use of a motor vehicle, one of serious assault, two of stealing and three of burglary.  Those offences were committed over the period 5 April 2004 to 29 May 2004. 

The applicant was 38 years old when he committed those offences.  He had a prior criminal history which included the imposition of a term of imprisonment.  When he was sentenced other summary offences were taken into account. 

The challenge before this Court centred on a term of six years imprisonment imposed on count 5 on the longer indictment, assault with intent to resist lawful arrest, an offence which was committed on 23 April 2004.  The other offences attracted concurrent terms of up to four years imprisonment.  The learned Judge recommended eligibility for post prison community based release, two years after sentencing.

That was in itself a generous recommendation because the Judge activated the suspended portion of a four year term of imprisonment which had been imposed for property offences on the 29 August 2001.  That term was then suspended after 18 months for an operational period of five years.  The offences the subject of the application before us occurred after the applicant's release from that custody and during the operational period of that order.

The Judge ordered that terms including the six years imprisonment in respect of the offence in count 5 be served cumulatively upon the two and a half years of the suspended term imposed in August 2001.  Although, as I have said, his recommendation in relation to parole ran from the actual date of sentencing. 

The Judge has made that clear in the context of an inquiry from an officer of the Department of Corrective Services.  That Department should proceed accordingly.  That is, that the recommendation is to run from the date of actual sentencing in the District Court on 10 October 2005.

The offences for which the applicant was imprisoned in August 2001 including many instances of entering dwellings and committing indictable offences, entering with intent, breaking into dwellings, the unlawful entry and use of motor vehicles, fraud and receiving.  Property to the value of $63,000 was lost because of that spate of offending.

The applicant does not complain of the activation of the portion of the earlier sentence which had been suspended or the requirement that he serve cumulatively the term to be imposed in October 2005.  He could not sensibly complain about those features because of the similarity between the offending at the earlier and later times, the proximity of the re-offending to the time of his release from custody, and its extent. 

Property to the value of $86,000 was involved in the later offending.  The later offending was of serious proportion.  For example, on four occasions the applicant entered basement car parks of apartment buildings on the Gold Coast and stole valuable motorcycles. 

He twice attended dwellings pretending to be a police officer executing a search warrant.  On one of those he stole $3,500 worth of property and the other a black briefcase of indeterminate value. 

In respect of count four, the applicant was, while committing the offence, surprised by the owners of a dwelling house while he was ransacking it.  On that occasion he stole approximately $10,000 worth of property.  For that last offence in count four he was imprisoned for four years.

That led into and was related to the offending involving count five, the offence which attracted the six year term.  The summary of facts in relation to those two counts, counts four and five, reads as follows, the complainants Clyde Kingsford and his wife Janet Kingsford, on 23 April 2004 had at approximately 2.35 pm arrived home after taking their dog for a walk in their neighbourhood.  They noticed the motorcycle parked outside their premises.   Mr Kingsford walked to the rear of the premises and noticed that a rear window was broken.  His wife who had gone inside the residence discovered that somebody was inside their home. 

Mr Kingsford noticed the male person, who was the accused, through the window of the house.  Both the complainant and the accused looked at each other.  The accused ran to the front door and then ran down the side of the house out to where the motorcycle was parked.  He mounted the cycle and attempted to start it.  The male complainant ran to him and grabbed him.  He attempted to pull him off the cycle and they fell to the ground.  The accused said to the male complainant, "I've got a bloody knife, I'll kill you, you bastard.  I know where you live, I'll get you.  Steve wanted me to get you."

At the same time he was reaching into his jacket as if he had a weapon.  They both ceased struggling and the accused got back onto the motorcycle.  The wife of the complainant grabbed at the backpack the accused was wearing.  The male complainant grabbed at the accused and was carried along for a distance of approximately 20 metres before he fell off the cycle.  The complainant suffered a sore wrist and a sore shoulder.  He identified the accused from a photoboard.  

On checking out their residence the complainants discovered that the following items had been taken:

"A quantity of jewellery, some make up, two pens, assorted keys, two remote controls, lotto tickets, Myer credit vouchers, a wallet containing $500, three mobile telephones, a calculator, a Canon camera, two watches, a note and coin collection and a boat head radio.  The accused refused to participate in a formal police interview." 

In his sentencing remarks, the Judge acknowledged the applicant's timely pleas of guilty.  On the other hand, he observed that the property involved was of considerable value.  The applicant gave no assistance to the investigating police officers.  There were indications of professional and planned dishonesty and all of the offences had been committed in breach of a suspended sentence. 

Before formally sentencing the applicant, the learned Judge intimated to counsel that he had in mind imposing a head sentence of six years' imprisonment to be served following the balance of the suspended term.  Neither counsel demurred.  Defence counsel I should say had earlier sought a term of four to five years for the instant offences but to be served concurrently with the earlier suspended term. 

Mr East, counsel for the appellant, has drawn attention to the circumstance that the maximum penalty in respect of count five was seven years' imprisonment and he has submitted that having regard to comparative levels of gravity, six years for this offence was too close to the maximum. 

He also submitted that the overall effective sentence, six years' imprisonment following two and a half years' imprisonment in the context of the one and a half years earlier served in respect of the suspended sentence, should be described as "crushing".

There is in my view no doubt that having regard to the totality of the criminality involved in the offending covered by the longer and shorter indictments a term of six years' imprisonment was warranted whether imposed for count five or one of the other counts or secured through cumulative sentencing. 

Rationally, that term of six years fell to be served following the serving of the activated suspended term.  His Honour has ameliorated the effect of the overall term by what must be considered a generous recommendation in relation to prison community-based release which, as I have said, falls to be considered two years from 10 October 2005 which was the date of sentencing.

The overall penalty is obviously substantial but was warranted for offending of this magnitude committed in these circumstances. 

I would refuse the application.
McPHERSON JA:  I agree.

WILLIAMS JA: The relevant facts have been set out by the Chief Justice in his reasons. The sentence of six years for the offence of serious assault, the offence defined in s 340(a) of the Criminal Code, must be considered in the context of the totality of the offending.  It should not be regarded as setting a precedent for sentencing for serious assault generally. 

I agree with the reasons of the Chief Justice.

THE CHIEF JUSTICE:  The application is refused.

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