R v Paxton

[1992] QCA 475

TIMOTHY ERIC PAXTON	Applicant
BRISBANE ..DATE 30/11/92
JUDGMENT his reasons first.

COURT OF APPEAL [1992] QCA 475

MACROSSAN CJ
PINCUS JA

DAVIES JA

CA No 273 of 1992

THE QUEEN

v.

PINCUS JA: This is an application for leave to appeal against sentence. The applicant pleaded guilty on 8 July 1992 in the District Court to two charges, one of which was that on 23 April 1990 he broke and entered a dwelling house with intent to commit an indictable offence, and the second was that on that date he stole a quantity of property.

On 28 August 1992 the learned District Court Judge determined to sentence the applicant to a period of two years' imprisonment in respect of the first count, that is the breaking and entering, and one year in respect of the second count, and recommended that the applicant be eligible for parole from 5 March 1993. The reason for selection of that date will appear.

The applicant is a man of age 20 years and he has a criminal history of a kind which might well have justified the sentences which the District Court imposed were it not for circumstances which I propose to mention. They are that about the same time the applicant committed some other offences, for which he was sentenced in 1990 and the applicant's counsel, Mr Alcorn, suggests that the District Court Judge who sentenced the applicant in respect of the offences he committed on 23 April 1990 failed to give due weight to what is described as the "totality principle".

On 8 October 1990 the applicant was sentenced to various terms Court in respect of the offences of 23 April 1990, the Court was told - and it did not appear to be disputed before His Honour - that the applicant had attempted to clear up all his outstanding charges on 8 October 1990 but, apparently due to the difficulties he had with alcohol, he had forgotten about the offences of breaking, entering and stealing, for which he was eventually indicted in August 1992.

of imprisonment, of which the longest was a period of three
years' imprisonment for an offence of assault with intent to
steal and threatened use of actual violence while armed with a
dangerous weapon. That offence is said to have been committed
on 8 April 1990. In addition, on 8 October 1990 the applicant
was sentenced to terms of imprisonment for four offences
committed on 25 April 1990. Those offences were, as to three,
related to motor vehicles, namely unlawfully using a motor
vehicle, dangerous driving and attempted unlawful use of a
motor vehicle, and the fourth offence was one of stealing. In
respect of those
offences committed on 25 April 1990, the applicant was on 8
October 1990 sentenced to various terms of imprisonment, the
highest being 12 months' imprisonment in respect of one
offence of dangerous driving. Lastly, again on 8 October 1990,
the applicant was sentenced to terms of imprisonment for
offences he committed on 11 August 1990, but it is not
necessary to say any more about those than that the applicant
received terms of imprisonment of less than three years. The
highest term imposed on 8 October 1990 was three years.

This, although not disputed, may be thought by some to be
little
improbable. However, it does not appear to me that His Honour
was entitled to reject it; that is, although the applicant's
failure to be dealt with in October 1990 for the April 1990
offences may have been partly his fault, it is my view that
the totality principle should have been applied at least to
the group of offences which occurred in April and, to put it
more narrowly, at least to the group of offences which

occurred on 23 and 25 April 1990.

Mr Martin, who appears for the Crown, concedes that had the is, although the offences of 23 April 1990 were reasonably serious, it seems improbable that they could have produced a sentence of more than three years or that they would have induced the Judge to impose any cumulative sentence.

applicant's offences of 23 April 1990 been considered by the
Court when it sentenced the applicant in October 1990, he
would almost certainly have been sentenced to no longer total
period of imprisonment. All the sentences then awarded were
concurrent and the longest of them was three years.

One reaches the result then, in my opinion, that the learned District Court Judge on 28 August 1992 should have applied the totality principle in such a way as to endeavour to achieve the result that the applicant received a punishment no more severe than that which he would have received had the offences of 23 April been dealt with by the Court in 1990.

The only question is how that is best achieved. It appears one year concurrently - are not in themselves objectionable, but having regard to the desirability - indeed necessity - of applying the totality principle in this case, it appears to me that the applicant should be sentenced in respect of the 23 April 1990 offences to a period of imprisonment which does not take his imprisonment past his present release date of 5 March 1993.

from the material placed before the Judge in August that the
applicant has made an unsuccessful application for parole. It
was stated to His Honour that his release date was 3 March
1993, or so the record shows. Subsequently to that being
announced, the Judge mentioned the release date as 5 March
next, and counsel who then appeared for the applicant said
that that was so. I think one should work on the assumption
that 5 March 1993 is in fact the release date. Precisely how
it came to be the release date does not appear, but I accept
that the applicant should be sentenced
on that basis.

For that reason, I would set aside the sentences imposed and in respect of each of the counts, sentence the applicant to a period of six months imprisonment commencing from 28 August 1992 and terminating on 28 February 1993.

The next question which arises is how parole should be dealt with. The applicant became eligible for parole in April 1992 and was indeed eligible for parole when he came before the

District Court in August, although parole had apparently been refused.

To conform with the principle of totality, it appears to me that the applicant should not suffer as to eligibility for parole and I would order that he be immediately eligible for parole. I would stress however that it should be understood that the order as to immediate eligibility for parole is simply brought about by the requirements of the totality principle, to place him in such a position as he would have occupied if these offences had been dealt with in October 1990. The direction that he be immediately eligible for parole is not made on the basis that he is held to be a particularly good candidate for parole. It appears to me that the matter of release on parole should be left to the discretion of the relevant authorities.

In short, the orders I would make are that the sentences imposed by the learned sentencing Judge on 28 August 1992 be set aside and that in lieu, the applicant be sentenced to a period of six months' imprisonment on each count beginning on 28 August 1992 and terminating on 28 February 1993, and that he be immediately eligible for parole.

THE CHIEF JUSTICE: I agree.

DAVIES JA: I agree.

THE CHIEF JUSTICE: The order of the Court then will be as Mr
Justice Pincus has indicated.