R v Ogilvie

[1998] QCA 390

COURT OF APPEAL

[1998] QCA 390

THOMAS JA
SHEPHERDSON J
JONES J

CA No 235 of 1998

THE QUEEN

v.

WAYNE DOUGLAS OGILIVE

BRISBANE

..DATE 07/10/98

JUDGMENT

JONES J:  On 24 June 1998 the applicant on his own plea was convicted on a total of 27 offences which occurred between
4 June 1996 and 21 October 1997.  In summary, the offences and the penalties were as follows:  one count of breaking and entering and stealing, five years imprisonment;  one count of attempted break and enter, four years imprisonment;  eight counts of receiving, each receiving three years imprisonment;  11 counts of fraud, each of two years imprisonment;  one count of possession of house-breaking implements, two years imprisonment;  two counts of attempted fraud, one year imprisonment;  two counts of wilful damage to property, one year imprisonment;  one count of an attempt to escape lawful custody, nine months imprisonment;  one count of accessory after the fact of house-breaking, one year imprisonment and one count of possession of tainted property, one year imprisonment.  All the sentences were to be served concurrently and the learned sentencing Judge recommended that the applicant be considered for parole after serving two years imprisonment.

The applicant was born on 8 February 1965 and was therefore between 31 and 32 years of age when committing these offences.  He has a lengthy criminal record for similar offences as well as for drug related offences.  The applicant is, or has been, addicted to heroin and much of his criminal activity was engaged in to support that addiction.  As a consequence of his prior criminal activity from the age of 19 the applicant spent six of his last 14 years in gaol.

The applicant tendered for His Honour's consideration a report of Dr Young, psychiatrist, dated 13 May 1998.  That report discloses that the applicant had a troubled upbringing and details his descent into drug dependence.  The applicant managed to rehabilitate himself for a period of approximately seven years but again turned to drugs and then to crime after the death in 1995 of his younger brother, following a motor cycle incident during a police chase.  It seems the applicant has not yet recovered from the effects on him of that incident and part of the problems which led to the commission of these crimes finds its origins in that event.

Dr Young is optimistic that the applicant can rehabilitate himself and that he will not re-offend. 

It is clear that the learned sentencing Judge gave weight to that assessment and to the applicant's early plea and to his family circumstances in his recommendation for parole after serving two years' imprisonment.

The applicant has raised six grounds of appeal:

1.Lack of comparability in the cases referred to the learned sentencing Judge by the prosecution. 

2.Untrue references by the prosecution concerning pleading guilty to break and enter charges. 

3.Untruth concerning the pawning of a watch.

4.That there was no violence in his offences and that this was not taken into account in comparability with other sentences.

5.That his co-accused received a lesser sentence though he had five charges less.

6.The backdating of the sentence did not go back far enough.

To support these grounds the applicant sent a letter, which was received by the Court on 1 October 1998, which alleges bias, failure by legal representatives to follow instructions, and refers to two of the matters in the notice of appeal.  These issues in the notice of appeal have now been supplemented by legal argument from the applicant who appears for himself.

Having regard to the multiplicity of offences, the extended period over which the offences occurred, and the applicant's extensive criminal records, the sentences inevitably called for a significant period of imprisonment.

Concerning the lack of comparability of cases, the applicant suggests that there was a certain degree of selectivity in the choice of cases put before the learned sentencing Judge.  During that hearing considerable time was spent comparing sentences, particularly with the case of The Queen v. Herricane. 

His Honour clearly had regard to those submissions and I think it is appropriate to draw attention to the fact that in the case of Herricane there was no recommendation for early parole.

I am satisfied that each of the offences referred to in the sentence by His Honour fell within a range which is appropriate in comparing the offences in question with those other cases.

The applicant also suggested there was a lack of parity between the sentences imposed on him and those imposed on his co-accused, Jason Cross.  However it seems that Mr Cross was a co-accused in relation to only one matter at a considerably earlier time.  As Mr Cross was sentenced on a different combination of charges, his sentence really has no relevance to the issue before this Court.

As to the credit for presentence custody, the learned sentencing Judge had before him information given by the Prosecutor, which appears at page 15 of the record, and the request of counsel representing the applicant to take into account the period of presentence custody beyond the 97 days which was allowed in determining what was the appropriate head sentence.  His Honour had accepted that the relevant presentence custody period was 97 days and it does seem that he did take into account the other period of imprisonment as he was requested to do by the applicant's counsel.

The other matters raised in the notice of appeal, namely reference to the Crown's mis-stating the applicant's intention regarding break and entering charges was discussed (see the record at page 22 line 25).  This could have no bearing upon the assessment of the sentence.

I can find no reference in the record to the pawning of the watch but that too would be unlikely to have any bearing on the imposition of the main sentence.

The sentences, in my view, were within the range of his Honour's sentencing discretion, though perhaps when one takes into account the extent of presentence custody, other than the 97 days, perhaps towards the upper end of it.  Nonetheless, His Honour had to consider the large number of offences over a long period of time against a background of an extensive criminal record.

In all of the circumstances, in my opinion, it cannot be said that the penalty imposed was manifestly excessive and I would disallow the application.

THOMAS JA:  For the record, the previous convictions of this applicant dated from 1982 to 1991 and included convictions for stealing, attempted break and enter with intent, break and enter with intent, break, enter and steal and attempted escape from prison and receiving.  For each type of offence he had received terms of imprisonment, the longest being three years with a term of six months cumulative.

I have been concerned in relation to the presentence custody which this applicant served. There was a substantial period of presentence custody in consequence of the fact that he was arrested on a warrant on 21 October 1997. That, of course, was a consequence of his own failures to appear. However, when he was ultimately sentenced in June 1998 the learned sentencing Judge was only able to give 97 days' credit under section 161 of the Penalties and Sentences Act. That period was the only one that could be identified as solely referable to the offences for which he fell to be sentenced.

However, the fact is that the balance of the period which seems to be between 123 and 128 days was directly connected with these offences and, although not deductable under section 161, ought to have been taken into account. His Honour did not expressly refer to this factor in his sentencing remark and the question arises whether it should be assumed that it was properly taken account of. Certainly, it had been mentioned to His Honour only a short time before the remarks were made.

In this circumstance I think the way to approach the matter is to assume that the factor was taken into account and that the sentence was fashioned in recognition of it.  If that is so, then it follows that it would be realistic to regard the actual sentence of five years as roughly equivalent to one of five and a half years, or more accurately, a sentence of five years and four months with a recommendation for parole after two years and four months. 

The question is, "Would such a sentence be too high?"

Now, when one considers the multiple offences involved over a 16 month period, some of them committed while on bail for earlier ones in the list, and when one takes into account the prior criminal history, I have come to the conclusion that although the sentences are on the high side, they are not manifestly excessive.  They must, of course, be seen to be excessive in that way before this Court should interfere with them.

I agree with the reasons which have been given by Mr Justice Jones and with the orders which he proposes.

SHEPHERDSON J:  I agree with what has been said by Mr Justice Jones and the learned presiding Judge.  This case, in my view, called for the application of the totality principle as explained by the High Court of Australia in Mill versus The Queen, 1988, 166 Commonwealth Law Reports, 59..  The test for applying that principle is to look at the totality of the criminal behaviour and ask oneself, "What is the appropriate sentence for all the offences?"

When one applies that test in the present case I conclude that an effective head sentence of five years and four months, as calculated by the learned presiding Judge, was appropriate and that it has not been shown to manifestly excessive.  I agree in the orders proposed.

THOMAS JA:  The order of the Court will be the application is refused.

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