R v Paget and Wells

[1989] TASSC 64

Serial No 64/1989
List "A"

CITATION:              R v Paget and Wells [1989] TASSC 64; A64/1989

PARTIES:  R
  v
  PAGET, Paul Lee
  WELLS, Reginald Michael

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 71/1989

CCA 72/1989

DELIVERED ON:  17 November 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey, Nettlefold and Wright JJ

Judgment Number:  A64/1989
Number of paragraphs:  14

Serial No 64/1989

List "A"
File Nos CCA 71/1989

CCA 72/1989

THE QUEEN v PAUL LEE PAGET and REGINALD MICHAEL WELLS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NEASEY J
NETTLEFOLD J
WRIGHT J
17 November 1989

Orders of the Court

1. The application by the Attorney–General for leave to appeal against the sentences imposed by Crawford J. on the respondents, Paul Lee Paget and Reginald Michael Wells, respectively, on 22 May 1989, is granted.

2. The appeals are, in each case, allowed.

3. The sentence of 10 months' imprisonment imposed on respondent Paul Lee Paget, to commence on 22 May 1989, is set aside, and in lieu thereof a sentence of 21 months' imprisonment, to commence on 22 May 1989, is substituted.

4. The sentence of 10 months' imprisonment imposed on respondent Reginald Michael Wells, to commence at the expiration of the sentence the said Reginald Michael Wells was serving on 22 May 1989, is set aside, and in lieu thereof a sentence of 18 months' imprisonment, to commence on the same day as the said sentence of 10 months' imprisonment commenced or would commence, is substituted.

Serial No 64/1989
List "A"
File Nos CCA 71/1989

CCA 72/1989

THE QUEEN v PAUL LEE PAGET and REGINALD MICHAEL WELLS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NEASEY J
17 November 1989

1. This case is an application by the Attorney–General for Tasmania for leave to appeal on the ground of inadequacy against two sentences, each of ten months' imprisonment, imposed on each of the two respondents after their conviction by a jury after a joint trial. The two men were each charged on ten counts of burglary and stealing and related crimes. The offences arose out of the following circumstances. The respondents, together with another man, drove in a motor car from Launceston to the town of Penguin, taking tools for burglary and safe–breaking with them. They intended to break into a supermarket at Penguin and steal therefrom. At Penguin they broke in through the back of the supermarket, and commenced to cut open a safe therein by using oxy–acetylene equipment.

1. However, before they could get the safe open they ran out of oxygen, so they left the supermarket and went to a nearby Mobil service station to try to steal a replacement cylinder of the gas. They gained access to the inside of this service station by means which are unclear, and there they stole a cylinder of oxygen and its contents, but found the cylinder too big to handle and abandoned it.

1. The two respondents then proceeded to break into another service station, this time owned by Shell, causing damage to its wall and to a cash register inside in the course of doing so. From that Shell service station they stole an oxygen cylinder and its contents, a safe, and two gas gauges. They took the safe outside the premises and forced its door open but found nothing inside, so left it. Then they returned to the supermarket, again entered it, and this time completed the cutting open of the safe and stole from it approximately $5,352 and a substantial quantity of cigarettes, tobacco and grocery items. Accordingly, the ten charges laid against them were –

1The first burglary of the supermarket;

2Attempting to steal the contents of the safe in the supermarket when they first tried and failed to cut it open;

3Burglary of the Mobil service station;

4Stealing the oxygen bottle and contents therefrom;

5Burglary of the Shell service station;

6Stealing a safe, an oxygen cylinder and its contents from that service station;

7Unlawfully injuring the wall of the Shell station, and a cash register and a safe therein;

8The second burglary of the supermarket;

9Stealing from the safe in that supermarket the sum of $5,232 and a quantity of cigarettes, tobacco and grocery items;

10Unlawfully injuring the safe in the supermarket by cutting a hole in its door and cutting a bar in it.

1. In sentencing the respondents, the learned trial judge took into account amongst other things the ages and previous criminal records of the respondents. Paget was a man aged 38 years at the time of the offences, and had had numerous convictions of a diverse kind in several States since boyhood. These included, from the age of 17 (that is, leaving out of account his juvenile offences, of which there were several), unlawful possession and use of motor vehicles, liquor offences, a number of convictions for breaking and entering and larceny, and some drug offences. Penalties of different kinds had been imposed, including many gaol sentences mostly in terms of months; none exceeding 18 months. He had apparently come to Tasmania in about 1985 or earlier, and in and since that year had been convicted of some liquor and drug offences; his last conviction of any substance being for receiving stolen property in December 1986.

1. Wells, on the other hand, was 24 years old at the relevant time. He also had some juvenile convictions for burglary and stealing and destroying property, and then had graduated to motor vehicle stealing at the age of 19. Thereafter, he was convicted of some multiple offences of burglary and stealing in 1983 at about the same age, and was given 21 months' imprisonment and a probation order to follow release. That was in September 1983, but he was given parole in June 1984. After that, he received some short sentences of imprisonment for burglary and stealing, committed some breaches of suspended sentence, and some nuisance type offences. These had been spread over each year from 1984 to 1988. Each man, therefore, had a substantial record relative to his age; with the younger man, Wells, perhaps a little more constant in the most recent years. In my view, however, there was little or nothing to choose between them overall on the score of previous offences. Both, relative to age, were shown to be regular and repeated offenders.

1. The learned trial judge treated the respondents as being equally culpable in relation to the crimes for which they were before him, and I think he was right in that. He imposed a sentence of ten months on each of them, after making some unspecified allowance for the fact that each had spent some time in custody before trial, and that Wells was already serving a sentence of eighteen months. His Honour ordered that Wells' ten months' sentence should begin at the expiration of that sentence being served, which had been imposed in March 1989 and ordered to commence on 15 December, 1988. It was part of the case put for the respondent Wells against the application for leave to appeal that Wells could have been charged on the same indictment for the offences for which he was given the 18 months' sentence as well as the present offences, and that if he had, a total sentence of two years and four months – that is, the eighteen and the ten months added together, could not have been said to be inadequate. The eighteen months sentence was imposed for one offence each of burglary and stealing committed at a food store at Launceston on 7 May 1988. The stealing charge there was for a quantity of food, a safe, a quantity of keys, some cheques and personal papers and approximately $170 in money. The offences under review were committed on 12 September 1988. In my opinion there is no substance in this argument as put by the respondent, because of the widely separated in time commission of these two sets of offences, the gravity of each set, and the fact that it would not have been a reasonable proposition to try both sets on the same indictment. However, the learned judge was right to take into account the totality of the sentences which the respondent Wells would have to serve, and to make some allowance for it. How much allowance was a matter for judgment in Wells' case, keeping in mind the need to maintain the sentences on the two men in a state of just balance as well as that could be done.

1. In my opinion, both sentences of ten months were clearly so inadequate as to call for intervention by this court. Both were well out of accepted sentencing patterns in this State, which, while they are low in comparison with Australian States and Territories overall, require that penalties will be imposed, for this kind of serious and costly depredation on a number of commercial properties by hardened offenders a sentence which will provide some reasonable vindication of the principles of general and personal deterrence, and the imposition of penalty befitting the seriousness of the crimes. The application for leave should be granted, in my view, and the appeal allowed and the sentences set aside. Taking all the circumstances into account, I would impose a sentence on respondent Paget of twenty one months; and on respondent Wells, eighteen months, to begin in his case at the expiration of the sentence he is presently serving.

   List "A"
   File Nos CCA 71/1989

   CCA 72/1989

THE QUEEN v PAUL LEE PAGET and REGINALD MICHAEL WELLS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NEASEY J
17 November 1989

1. I have read the reasons for judgment prepared by Neasey J. I agree with them and with the orders which he proposes.

   List "A"
   File Nos CCA 71/1989

   CCA 72/1989

THE QUEEN v PAUL LEE PAGET and REGINALD MICHAEL WELLS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NEASEY J
17 November 1989

1. The Crown seeks leave to appeal against sentences imposed in the Criminal Court at Launceston on 30 June 1989 when each of the respondents was sentenced to ten months' imprisonment, having been convicted upon trial of four counts of burglary, three counts of stealing, two counts of unlawfully injuring property and one count of attempted stealing.

1. When passing sentence, the learned trial judge stated as follows:

"... All of these offences of course, arose on the one night and arose in the course of a common plan to burgle the supermarket at Penguin taking oxyacetylene equipment with you from Launceston. You broke in, cut open the safe and removed $5352 in money, about $500 worth of cigarettes and tobacco, and a small amount of food. Because you ran out of gas you then burgled two service stations nearby for the purpose of stealing gas from there and from one of these service stations you also removed a safe and caused it to be opened. There was nothing of value there. You also stole some gauges relating to gas equipment from one of those service stations.

The prisoner Paget has a long record of offences over the last twenty years and has been sentenced to imprisonment for periods of eighteen months, twelve months, on two occasions for eight months and also to other terms of imprisonment for dishonesty, including school breaks, hotel break, a factory break and a shop break. It is a poor criminal record although in his favour it can be said over recent years, it is not a bad one at all.

It has been put to me that I should take into account that you have been in custody because of these crimes for quite a long time. You were apparently in custody from 21 October to 22 November 1988 and then released on bail. You were returned to custody on 12 January 1989 and you have been in custody ever since. The point must be made however that after the first month or so you were released on bail and it appears that your return into custody came about because of other offences possibly also because you failed to comply with the conditions of bail. I therefore will not take into account that you have been in custody for all of the times since January, but I will take into account to some extent that you have been in custody.

In the case of the prisoner Wells, you are aged only 24 years and yet you have a bad record for a person of that age. It is not worse than that of the prisoner Paget but you have committed far more crimes of dishonesty than him over the last eight years. I note that you are already serving a term of imprisonment and I will order that the term of imprisonment that I now impose on you will commence at the termination of that term but because of that fact, because I intend to make it cumulative, I will reduce the period of imprisonment to some extent. I do not treat either of you as playing a greater part in the commission of these crimes than the other."

1. There can be no doubt that his Honour was justified in taking into account the period that Paget had spent in custody from 21 October to 22 November 1988 and in giving recognition to the totality principle, by lightening the sentence on Wells because he intended to make it cumulative upon a term of imprisonment already being served. However, the Crown submits that notwithstanding these factors, the sentences imposed upon each respondent were manifestly inadequate.

1. It was put to us by counsel on behalf of Paget that his client, now aged 39 years, had been convicted of only one similar offence within the last 11 years. This is a reference to a conviction for shop breaking in 1984 at Murray Bridge, South Australia. However, since that time there have been numerous convictions for alcohol and drug related offences and in 1986, Paget was convicted on two separate occasions of receiving stolen goods and was sentenced to short terms of imprisonment. In my opinion, it is fair to regard him as a dishonest offender of mature years who has not yet learnt the error of his ways and in respect of whom a deterrent sentence is called for. Wells, whilst significantly younger than Paget, is an experienced thief with a well defined and persistent pattern of recidivism. Anything but a deterrent sentence in his case would be quite unjustified.

1. The principal offences of which the respondents were convicted, namely burglary of and stealing from the Value Plus Supermarket at Penguin, were premeditated and involved the use of cutting equipment. All in all the offences committed on 12 September 1988 were part of a criminal enterprise showing a significant degree of "professionalism". The monies and goods stolen have not been recovered. Apart from the factors already mentioned there was no legitimate basis upon which leniency could have been shown to either offender. In my opinion, taking full account of the custody and totality factors to which I have referred, sentences of ten months' imprisonment were manifestly inadequate in that they did not reflect the gravity of the criminal episode and the need to deter both offenders and others with a condign punishment (Veen v The Queen (No 2) (1987–88) 164 CLR 465).

1. In my opinion the application for leave to appeal should be granted and the appeal should be allowed. I agree with the fresh sentence proposed in respect of each respondent by my learned brother Neasey J.