R v Phillips

[1993] QCA 380

IN THE COURT OF APPEAL	[1993] QCA 380
SUPREME COURT OF QUEENSLAND

C.A. No. 268 of 1993

Brisbane
[R. v. Phillips]

BETWEEN:

T H E Q U E E N

-v-

SCOTT AARON PHILLIPS

Applicant

The President
Mr Justice Davies

Mr Justice Thomas

Judgment delivered the 11th day of October, 1993

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL GRANTED.
APPEAL ALLOWED.
SET ASIDE THE SENTENCES OF THREE YEARS IMPRISONMENT ON COUNT 5 AND
COUNT 7 AND SUBSTITUTE TERMS OF TWO YEARS IMPRISONMENT ON EACH OF
THOSE COUNTS, CONCURRENT WITH THE SENTENCES ON COUNTS 3,4,6 & 8 AND
WITH THE SENTENCE IMPOSED IN THE BRISBANE MAGISTRATES COURT ON 18
FEBRUARY 1993. SET ASIDE THE RECOMMENDATION THAT THE APPLICANT BE
CONSIDERED FOR RELEASE ON PAROLE ON 3 OCTOBER 1995 AND SUBSTITUTE A
RECOMMENDATION THAT HE BE CONSIDERED FOR RELEASE ON PAROLE ON 3
JANUARY 1995.

IN ALL OTHER RESPECTS THE SENTENCE WILL STAND.

CATCHWORDS:

Criminal law - sentence - reduction for co-operation with police.

Counsel:	Applicant in person
Jim Henry for respondent
Solicitors:	Director of Prosecutions for respondent

Hearing date: 5th October, 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 268 of 1993

Brisbane

Before The President

Davies JA.

Thomas J.

excessive.
The applicant, who has been addicted to heroin, has a very extensive criminal history
extending back to 1980, when he was aged 13 years. Most offences involve dishonesty and a
number include violence. As a result, he has been imprisoned on a number of occasions. Most
of the offences for which sentences were imposed on 8 July 1993 occurred while the applicant
was out of prison only because he had escaped from custody.

The applicant escaped from custody on 18 December 1992, but was subsequently
recaptured and, on 18 February 1993, convicted and sentenced to imprisonment for four months,
to be cumulative upon his other sentences, with a recommendation that he be considered for
parole after serving two months of that sentence. This meant that under s. 157(6)(a) of the
Penalties and Sentences Act the new non-parole period would expire on 3rd June, 1994.
The present application is primarily concerned with the sentences imposed in respect of
the other offences for which the applicant was sentenced on 8 July 1993, which were committed
by the applicant after he had escaped from custody and before he was recaptured. On 4 January
1993, he unlawfully used a motor vehicle for which he was sentenced to imprisonment for one
and a half years. On 15 January 1993, he unlawfully used another motor vehicle for the purpose
of facilitating the commission of an indictable offence and was sentenced to imprisonment for
two years. On the same day, he broke and entered two dwelling houses, from each of which he
stole property. On each count of house breaking (counts 5 and 7) he was sentenced to
imprisonment for three years and on each count of stealing he was sentenced to imprisonment for
two years. The sentences imposed on 8 July 1993 in respect of the offences of 4 and 15 January
1993 were ordered to be served concurrently with each other and with the sentence imposed in
the Magistrates Court on 18 February 1993 in respect of the offence of escaping from custody
but were made cumulative on the sentences which had been imposed on the District Court on 3
April 1992. It was recommended pursuant to s. 157(3)(a) of the Penalties and Sentences Act that
the applicant be considered for release on parole on 3 October 1995. The imposition of the
cumulative three year sentences meant that the sentences overall would not expire until 3 April
2000.

applicant in the District Court at Brisbane on 8 July 1993 on the ground that they are manifestly time, the applicant was under sentences of imprisonment to 3 August 1997 with recommendations entitling him to be considered for parole on 3 June 1994.

On 3 April 1992, the applicant was sentenced for multiple house breaking and other offences between 20 May and 26 August 1991. The effective sentence was imprisonment for five years, ie. until 3 April 1997, with a recommendation that he be considered for parole on 3 April 1994. Two of the offences for which the applicant was sentenced on 8 July 1993 formed part of the same series of offences, one offence of house breaking and one of stealing on 28 August 1991. The sentences imposed in respect of these offences, to be served concurrently with the sentences imposed on 3 April 1992, did not add to the total period to be served for this whole series of offences or delay the date when it was recommended that the applicant be considered for parole.

The practical effect of the sentencing was to add on a head sentence of two years eight months, with an additional non-parole period of 16 months.

The offences committed in January 1993, during escape from custody, necessarily

During the hearing of the appeal, with the consent of counsel for the Crown, the Court
was supplied with additional information which had not been presented to the learned sentencing
Judge. The stated reason for its non-presentation was that his solicitor was "the family solicitor"
and that disclosure of the information would have led to his family knowing of it. It was said
that his family's principles precluded any co-operation with the police. The applicant has an
unfortunate background and was reared in a criminal environment. Whilst in prison he was
suspected by the criminal element of co-operating with the authorities. Consistently with his
culture, he resisted protection for a time, but eventually accepted it and, it was said, was
thereupon disowned by his brothers. This is merely background to his escape, and also to a
proper understanding of the additional information which was presented to this Court.
It is sufficient to say that he has on a number of occasions supplied accurate factual
information to the authorities, and more recently, information described as "extremely valuable".
It is of a kind which puts him at significant risk of retaliation and it means that each day spent in
custody is a greater burden than it would otherwise be. These are matters which normally would
be expected to attract a substantial discount from sentences that would otherwise be imposed.
Had these facts been before the learned sentencing Judge, there is little doubt that the sentences
would have been less.

required further punishment, and the question is whether the result is manifestly excessive. solid staunch to co-operating with the police" is at least an indication of movement away from what has been described as "a particularly dyssocial family environment". In the circumstances it is appropriate to reduce the effective additional term by one year, and to reduce the non-parole period by nine months. This will be achieved by the following orders:

(a)

Grant leave to appeal and allow the appeal;

(b)

Set aside the sentences of three years imprisonment on count 5 and count 7 and substitute terms of two years imprisonment on each of those counts, concurrent with the sentences on counts 3, 4, 6 and 8 and with the sentence imposed in the Brisbane Magistrates Court on 18 February 1993.

(c)

Set aside the recommendation that he be considered for release on parole on 3 October 1995 and substitute a recommendation that he be considered for release on parole on 3 January 1995.

(d)

In all other respects the sentences will stand.

BETWEEN:

T H E Q U E E N

-v-

SCOTT AARON PHILLIPS

Applicant

JUDGMENT OF THE COURT

Judgment delivered the 11th day of October, 1993

This is an application for leave to appeal against sentences imposed on the