R v. Phillips

[2008] QCA 5

COURT OF APPEAL

McMURDO P
HOLMES JA
FRYBERG J

CA No 269 of 2007

THE QUEEN  Appellant

v.

WAYNE JOHN PHILLIPS  Respondent

BRISBANE

..DATE 04/02/2008

ORDER

THE PRESIDENT:  Justice Holmes will deliver her reasons first. 

HOLMES JA: On the 20th of September 2007, the applicant pleaded guilty on an ex officio indictment to 19 counts of burglary and stealing, three counts of burglary by breaking, one of burglary simpliciter and five counts of stealing. At the same time he was sentenced for 3 summary charges: possession of a dangerous drug (cannabis); a breach of the Bail Act (failing to appear); and an unregulated high risk activity (climbing up the outside of a building). On the burglary counts he was sentenced to 6 years' imprisonment concurrent with a 3 year sentence of imprisonment imposed on the stealing counts. He was convicted but not punished in respect of the summary charges. 199 days spent in pre-sentence custody were declared as time already served, and a parole eligibility date of 5th of March 2009, two years after he was taken into custody, was set.

The offences breached a 2004 sentence of 3 years' imprisonment

suspended after 12 months in respect of 17 counts of burglary

and stealing.  The learned sentencing judge ordered that the

balance of that sentence be served concurrently.

The applicant is 26 years old.  He has an extensive criminal

history for offences of dishonesty, relevantly beginning in

1998, when he was sentenced to 12 months' juvenile detention

for breaking and entering offences.  His history since that time is interspersed with short periods of imprisonment for stealing and burglary.  When the 2004 sentence was imposed, he was also dealt with for a breach of a suspended sentence (12 months suspended after 6 weeks) for 11 counts of stealing and four counts of burglary.  After being sentenced in 2004, he was released from custody on the 30th of December 2005, and, although still within the operative period of the suspended sentence, began to re-offend just a month after his release.

Returning to the present indictment, the burglary offences

generally involved entry of unattended homes, usually by

smashing a window, and theft of property such as jewellery,

money, cameras, DVD's and compact discs.  The stealing

offences were shop stealing, except for one count which

involved stealing a donation tin from an RSL Club.

The value of the property stolen totalled $72,798.  About

$5,000 worth had been recovered.  In relation to some 7 of the

offences, the police were in possession of evidence linking the applicant to the offences, in the form of surveillance video, DNA analysis or eyewitness evidence, but the remaining 25 offences were prosecuted as the result of the applicant's own admissions in an interview.  While being held in custody he said that he wanted to clear up a number of break and enter

offences and proceeded to take the police to the relevant

premises.  Four of the offences occurred while he was on bail

and post-dated that cooperation.  In his interview, the applicant said that he stole the items to fund his heroin addiction and need for regular "hits".  His counsel explained that he had been addicted since he was 14 years old. 

The learned sentencing judge referred to the applicant's lengthy criminal history, his prompt re-offending on release from his last term of imprisonment, the committing of four of the offences while on bail, and the considerable value of the goods stolen from homes.  In favour of the applicant he accepted that the cooperation with police and an early plea of guilty were evidence of remorse;  that notwithstanding the effects of his heroin addiction, while previously in imprisonment he had been able to advance his education, completing grade 10 and some other courses; and that he had, while on remand, returned negative urine tests for drugs.

The applicant's grounds of appeal were that the head sentence

and the non-parole period were manifestly excessive and failed

fairly to take into account the mitigating factors.  Here in

the latter regard he pointed to his cooperation and plea of

guilty to suggest that the head sentence was too high, saying

that if he did not get parole he would be in custody until

2013.

The Crown Prosecutor referred us to two comparable cases, R v.

Meredith [2002] QCA 481 and R v. McKinless [2004] QCA 280.

An examination of those cases and the authorities referred to

in them satisfies me that this sentence was not manifestly

excessive.

This was a case in which it was reasonable to extend some

leniency in the imposition of the head sentence, as well as in

setting the non-parole period, given the applicant's

cooperation.  If these offences had stood alone, 6 years

might well have been considered too severe.  The applicant is

young, and his cooperation, in the form of admissions and early guilty plea, was very significant.  But it was necessary also in this case to activate the two years remaining on the

suspended sentence which, in the ordinary course, would have

been imposed cumulatively.

There is no basis to suppose that the applicant will not be

able to obtain parole at the eligibility date.  Taking the

sentence as a global one, incorporating punishment for the

offences on the current indictment and activation of the

earlier sentence, I do not think, in any event, that the

complaint that 6 years' imprisonment with a recommendation for

parole after a third was manifestly excessive can be

sustained.  I would refuse leave to appeal against sentence.

THE PRESIDENT:  I agree.

FRYBERG J:  I agree.

THE PRESIDENT:  The application for leave to appeal against

sentence is refused.

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