R v Prosser
[1995] QCA 302
•11/07/1995
| IN THE COURT OF APPEAL | [1995] QCA 302 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 159 of 1995.
Brisbane
[R v. Prosser]
T H E Q U E E N
v.
DAMIEN RENEA PROSSER
(Applicant)
____________________________________________________________________
Pincus J.A.
Demack J.
Shepherdson J.
____________________________________________________________________
Judgment delivered 11/07/1995
Separate reasons for judgment of each member of the Court; Pincus J.A. dissenting
____________________________________________________________________
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
____________________________________________________________________
CATCHWORDS: CRIMINAL LAW - sentence - offences committed during operation of suspended sentence - late pleas of guilty - totality - overall criminality.
S. 147 Penalties & Sentences Act 1992
Mill (1988) 166 C.L.R. 59
Griffiths (1989) 167 C.L.R. 37
McInerney (1986) 42 S.A.S.R. 111
| Counsel: | Mr D Lynch for the applicant |
| Mr B Campbell for the respondent | |
| Solicitors: | Legal Aid Office for the applicant |
| Director of Prosecutions for the respondent |
Hearing date: 7 June 1995.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 11/07/1995
I have read the reasons for judgment of Shepherdson J in which there is to be found a detailed account of the criminal history of this applicant. It is desirable to consider the offences which seem principally to have influenced the sentences sought to be challenged, imposed in the District Court on 24 March 1995, in three categories. First, there is the group of offences which were dealt with in the District Court on 4 August 1994. Second, there is the group as to which the District Court imposed sentences on 31 March 1995. The third group is a collection of offences dealt with in the Magistrates Court on 15, 16 and 17 March 1995.
The first group, those dealt with in the District Court on 4 August 1994, consisted in a total of four stealing offences and two offences of wilful and unlawful damage to property; they were committed between June 1992 and October 1993. The learned District Court judge imposed a 12 month suspended sentence and made orders for compensation on the basis that there were features which "perhaps naively inspire some cause for optimism in your case", to use his Honour's expression. With respect to the second batch, dealt with on 31 March 1995, they consisted of four offences committed in April 1994 - before the sentencing just discussed - and another one committed in October 1994. It is convenient to defer discussion of the details of those five offences; all that requires emphasis at this stage is that only one of them, and that not a very heinous offence, was committed after the suspended sentence of 4 August 1994 was imposed. Had there been no other recent offences for which sentences were to be imposed, it would have been surprising if a heavy sentence were imposed for the April 1994 offences on the basis that the applicant had not taken advantage of the opportunity given him by the August 1994 suspended sentence; that would have been surprising because only one offence committed after August 1994 was included in the batch dealt with in the District Court in March 1995.
It appears to me, then, that the offences dealt with in the Magistrates Court in March 1995 must supply, or at least contribute substantially to, the explanation of the course the judge took on 24 March 1995. Regrettably, the sentencing judge was supplied with rather vague information about the Magistrates Court offences dealt with after August 1994; they seem to have been:
Offence of 7 September 1994 - possession of property suspected of being stolen: fine on 23 November 1994.
No date - two charges of driving whilst disqualified, one of driving under the influence of alcohol or a drug and one of unlawful possession of property: total of 6 months imprisonment imposed on 15 and 16 March 1995.
No date - two offences of breaching a bail undertaking: fine on 16 March 1995. of the suspended sentence.
I now return to the details of the offences for which the sentences presently attacked were imposed. The two April 1994 breaking and entering offences related to a residence of a neighbour of a co-offender, one Camilleri; property of value in excess of $7,000 was taken and property of value nearly $4,000 was not recovered. Camilleri, according to the information placed before the primary judge, admitted that it was he who suggested the commission of these offences. It appears that the charge of stealing was ancillary to these two offences of breaking and entering.
The receiving count related to what was described as a pewter wizard ornament, apparently not an item of considerable value. The last count - being the only offence the subject of this application which was committed after August 1984 - was, according to the applicant's counsel who appeared below, committed at the instigation of a friend who came to the applicant's house in a car and asked to be driven to Chevron Island; the applicant acceded to that request and so was guilty of unlawful use of the vehicle.
The learned primary judge ordered, under s. 147 of the Penalties & Sentences Act 1992, that the applicant serve the whole of the suspended imprisonment imposed on 4 August 1994; no complaint is or could reasonably be made of that. The judge then turned to the other offences remarking:
" . . . I consider it's appropriate to determine a head sentence designed to
indicate your overall criminality ".
His Honour then said, among other things:
"You should realise yourself by now that your conduct of recent times has left a lot to be desired. It seems to me it hasn't improved, despite the fact that you were given the opportunity of changing your ways when the suspended sentence was imposed last year . . .
As I say you haven't taken advantage of the opportunity that was given to you when your suspended sentence was imposed last year. In the circumstances I am left with no alternative other than to impose a substantial custodial sentence.
For each of the offences of house-breaking I order that you be imprisoned for a period of 5 years . . . "
The impression these remarks create is that the critical factor in the judge's decision to impose a sentence of 5 years imprisonment for the two breaking and entering offences, committed in April 1994, was the conduct of the applicant after August 1994 when he was given a suspended sentence. In determining whether a sentence for a particular offence is a proper one, the Court is entitled to take into account offences committed after that for which the sentence is being imposed: see McInerney (1986) 42 S.A.S.R. 111 at 113 where King CJ, speaking of offences committed after that for which the sentence is being imposed remarked:
"In circumstances . . . in which the offender might otherwise have been given credit for having lived a law abiding life in the period between crime and sentence, it is relevant that he has not so lived but has committed an offence or offences in that period. In some circumstances, the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required. . . . the circumstances in which offences subsequent to the commission of the offence for which sentence is being passed, are relevant to the sentence, are more restricted than those in which prior offences are relevant. "
Plainly, subsequent offences were relevant to the exercise of the Court's power under s. 147, with respect to the suspended sentence. The question which has troubled me here is whether the learned primary judge has, in assessing the proper sentences for the five offences before him, considered that question on the basis that he had to determine "a head sentence designed to indicate your overall criminality", the expression "overall criminality" being intended to refer to, not only the five offences in question, but all the subsequent offences. If his Honour did so, then that was, in my view, an error; the applicant had already been punished for those additional offences, by fines or imprisonment. There is nothing in the principle of totality which can justify a court in fixing a sentence at a level which reflects the "overall criminality" of a number of offences for some of which the offender has already been sentenced and for some of which he has not been sentenced.
To put the matter more broadly, the question is whether the primary judge has, in fixing proper sentences for offences committed in April 1994, given too much weight to offences committed later in 1994, and to some committed in 1995. In my respectful opinion his Honour has done so.
Had the breaking and entering offences, and the other two offences committed prior to August 1994, been included in the group for which sentences were imposed in that month, the sentencing judge, although perhaps likely to impose a custodial sentence, would not have imposed a sentence approaching 5 years. And it has to be kept in mind that the only additional offence the subject of this application which was committed after the suspended sentence was imposed, was not one of great criminality.
The distinction between, on the one hand, imposing a sentence for offence A, taking into account to the extent permissible that the offender has since that offence committed and been punished for offence B, and imposing for offence A a total sentence which reflects the "overall criminality" of both offence A and offence B, on the other, may seem to be a fine one. Particularly is that so where, as here, the sentence for offence A is made concurrent with that which has already been imposed for offence B. Nevertheless, it is a distinction which it is important to preserve, lest the law incur the reproach of repeatedly imposing punishment for the same offence.
In the present case, the applicant could have avoided the situation in which he finds himself by pleading guilty, in August 1984, to the four counts which already subsisted. That he did not do so produces the result that he must receive less consideration on account of the late plea than he would have received had he pleaded promptly; but it does not mean that he should receive special additional punishment.
This offender's criminal record shows a pattern of frequent offences from about the time he turned 18, on 4 June 1990. He has previously been sentenced to imprisonment, the longest sentence imposed being 12 months. It is my view that an escalation in the level of punishment was called for; but in the circumstances discussed above, to go straight to a 5 year sentence appears to be excessive and to give too little credit for the pleas of guilty and for the applicant's youth.
I would grant the application and allow the appeal to the extent of reducing each of the 5 year sentences to a sentence of 3 years and 6 months.
REASONS FOR JUDGMENT - DEMACK J
Judgment delivered 11/07/1995
This is an application for leave to appeal against sentences imposed on the applicant following his pleas of guilty in the District Court at Southport. I have had the opportunity of reading the draft reasons prepared by Pincus JA and Shepherdson J. It is not necessary to set out the facts in detail.
I accept that it is necessary to identify the "overall criminality" for which the
applicant was being sentenced. The charges were as follows:
A.Two charges of house-breaking and one of stealing, committed on 6 and 8
April 1994;
B.One charge of receiving, committed on 17 April 1994;
C.One charge of unlawful use with a circumstance of aggravation, committed on
6 October 1994.
If at the time the applicant pleaded guilty in the District Court at Southport on 4 August 1994, he had also pleaded guilty to the charges identified as A and B, it is likely that he would not have received a head sentence of five years. The issue is whether events following upon 4 August 1994 justify a sentence of five years imprisonment.
The offences in respect of which the applicant was sentenced in the Magistrates Court on 15 March 1995 cannot in themselves justify a heavier sentence. Those offences were fully punished by the Stipendiary Magistrate. However, they were relevant to the matters being considered by the experienced District Court Judge on 31 March 1995, because one of the submissions made in August 1994 was that the birth of the applicant's son had made him realise he had to be more responsible in respect of a drinking problem. The convictions on 15 March 1995 for two offences of drink-driving showed that the applicant had not been able to put any heightened sense of responsibility into effect.
More significantly, the offence of unlawful use of a motor-vehicle with a circumstance of aggravation was committed just over two months after the applicant received the suspended sentence. The vehicle was taken from an underground security carpark after a rear window had been removed from the vehicle. The police were promptly informed and located the vehicle with the applicant and another young man in it. The applicant ran away as the police were proceeding with their enquiries. The explanation offered for the crime was that the other man requested a lift to Chevron Island. Such an explanation may be true, but if it is, it does not necessarily show that the applicant is a foolish young man easily led. Rather it suggests a complete disregard for the law and also possibly some exhilaration in committing offences. The two offences of housebreaking show the same attitude of mind and heart.
Thus the criminality was of a very serious kind. Prevalent offences, which cause significant loss and distress in the community, were committed in a way that showed complete disregard for the law and the community. The later offence showed that the suspending of the sentences on 4 August 1994 had not assisted the applicant to become a more responsible member of the community.
The circumstances in which the pleas of guilty were offered did not require a significant reduction in the sentences imposed. The pleas of guilty to the housebreaking charges were offered only when it was clear to the applicant that his co- accused, Camilleri, was to give evidence for the prosecution. There was always a willingness to plead to the charge of unlawful use, but the plea in respect of the receiving charge was also very late. Some expense may have been saved, but no contrition was evident.
The sentences imposed on the applicant were substantial, but I am not satisfied they were manifestly excessive. The applicant, although young, has shown such a degree of criminality that a substantial sentence had to be imposed.
I would refuse the application.
REASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 11/07/95
On 24th March 1995 in the District Court at Southport the applicant pleaded
guilty to the following charges:-
(1)that on 7 April 1994 at Gold Coast he broke and entered the dwelling house of Gary
Alan Lane with intent to commit an indictable offence therein;
(2)that on 8 April 1994 at Gold Coast he broke and entered the dwelling house of Gary Alan Lane with intent to commit an indictable offence therein;
(3)that between 6 April 1994 and 9 April 1994 at Gold Coast he stole [a number of items of property all identified] and a sum of money namely $400.00 the property of Gary Alan Lane;
(4)that on 17 April 1994 at Gold Coast he received an ornament the property of one Beech which had then lately been stolen and that he then knew that the said ornament had been so stolen; and
(5)that on 6 October 1994 at Gold Coast he unlawfully used a motor vehicle without the consent of the person in lawful possession thereof and that at that time he wilfully removed part of the said motor vehicle.
He was then remanded in custody when sentencing was adjourned to a date to be fixed. On 31 March 1995 he was sentenced by a learned District Court Judge at Southport for the above five offences. The following sentences were imposed:-
| As to the applicant's antecedents - he was born on 4 June 1972 and, despite his He was first convicted on 21 June 1990 when he appeared in the Southport | age he does have a substantial criminal history. convicted and fined $400.00 (one penalty imposed) on one charge of obscene language, two charges of assaulting police and one charge of resisting police, all those offences having been committed on 22 November 1993. |
| On 20 April 1994 he was again in the Southport Magistrates Court on a charge | |
| of contempt - breach of the Bail Act and was convicted and fined $210.00 of twelve months' imprisonment but suspended for three years were imposed - these are matters to which I have already referred. | |
| At the same time he was ordered to pay compensation totalling $1,134.00 within four months. | |
| On 16 March 1995 in the Southport Magistrate Court on two charges of breach On 17 March 1995 in the Southport District Court on proceedings for non- | |
| of a bail undertaking he was convicted and fined $600.00 on each charge. be served cumulative upon each other but concurrent with the six months presently being served. The criminal history notes "effective sentence of 17 weeks is to have effect on and from 16 March 1995". | |
| The criminal history document tendered to the learned sentencing Judge on 31 March 1995 was incomplete. It did not show the source of the above statement "concurrent with the six months presently being served". | |
| The transcript of proceedings before the learned sentencing Judge on 31 March 1995 shows that the criminal history document had not been fully updated since 15 March 1995 and that it failed to mention a number of offences for which the applicant was dealt with apparently on 15 and 16 March 1995. These matters were two counts of driving whilst disqualified, one count of driving whilst under the influence of alcohol or a drug and one count of unlawful possession of property. None of these was mentioned in the criminal history document before the learned sentencing Judge. The transcript of 31 March 1995 records the prosecutor telling the learned sentencing Judge that the applicant "received a month on the 15th March" and "he received five months on the 16th March". The matter is not as clearly detailed as I should have liked but I infer that on 15 and 16 March the applicant received sentences totalling six months and that the total of those sentences is the source of the reference to "the six months presently being served" mentioned in his conviction in the Southport District Court on 17 March 1995. | |
| The transcript of 31 March 1995 also records that the earliest discharge date "in respect of the matters he is serving at the moment" is 1 August 1995. |
Counts 1 and 2 (Housebreaking) - five years' imprisonment
Count 3 (Stealing) - one years' imprisonment
Count 4 (Receiving) - six months' imprisonment
Count 5 (Unlawful use of a motor vehicle with a circumstance of aggravation) - twelve
months' imprisonment.
The learned Judge concluded his sentencing remarks by saying:-
"Despite your plea of guilty I'm satisfied that there are no circumstances which would justify my recommending any early parole."
At the same time His Honour also dealt with the applicant for a sentence of twelve months' imprisonment which had been imposed on 4 August 1994 by another Judge of District Courts at Southport but then suspended for a period of three years. This sentence was for three offences of stealing and one of wilful and unlawful damage to property all committed between 1 June 1992 and 23 October 1993 and a further offence of stealing and an offence of wilful and unlawful damage to property in the night time both of which latter offences had been committed on 22 August 1993. Acting under s. 147 of the Penalties and Sentences Act 1992 His Honour, on 31 March 1995 ordered the applicant to serve the whole of the twelve months' suspended imprisonment.
The applicant has sought leave to appeal against the sentences of five years for the two housebreaking offences but his notice in which he seeks leave to appeal has listed all the above six sentences imposed on 31 March 1995.
Thus, on 31 March 1995 the applicant was serving a number of sentences.
The circumstances of each of the offences to which the applicant pleaded guilty
on 24 March 1995 were as follows:-
(1)Counts 1, 2 and 3 - two housebreaking and one stealing.
On successive days the applicant and one Camilleri broke into the house next to
where Camilleri was living at Runaway Bay and whilst the occupier was away on holidays. The first occasion was at about 8.00pm on 7 April 1994 when entry was gained by forcing a sliding door. Property was removed on this day and taken to Chevron Island to try to sell it. On the following day the applicant and Camilleri again broke and entered the same house and were moving property from it when police arrived. The value of property stolen was $7220.00, the value of property recovered was $3,340.00 and thus the property not recovered was valued at $3,880.00. The applicant declined a police interview. He was on bail when these offences were committed.
(2)Count 4 - Receiving
The applicant received a pewter ornament which had been stolen during a
housebreaking on 17 April 1994. He received it later the same evening. The applicant declined a police interview and at the time of the commission of this offence he was on bail in relation to the offences for which he was dealt with on 4 August 1994 and the housebreaking and stealing committed on 8 and 9 April 1994.
(3)Count 5 - Unlawful use of a motor vehicle with circumstance of aggravation
The complainant's Bedford panel van was taken from the car park under his unit
at about 11.00pm on 6 October 1994. The rear window of the van had been removed to gain entry into it. Within a short time police observed the van, it was seen to stop in a suburban street. As police approached the van the applicant got out of the driver's door. When advised the car was stolen the applicant said "It's not stolen, it's my mate's car" and pointed to the passenger. The applicant refused to sit in the police car. As the police officer reached into the police car to get his notebook and an alcohol tester the applicant ran off disappearing over a high fence. He was not located until the next morning when he declined to be interviewed. At the time of the commission of this offence the applicant was on bail in relation to a number of offences and had been given a suspended sentence on 4 August 1994. It was the conviction for this particular offence of 6 October 1994 which activated the suspended sentence and resulted in the learned sentencing Judge ordering on 31 March 1995 that the applicant serve the whole of the suspended sentence.
Before I go further I should say that Daniel Laurence Camilleri, a co-offender in respect of the above Counts 1, 2 and 3 was at least four years younger than the applicant and had no previous convictions. On 23 November 1994 on his pleas of guilty to these three counts and one further charge of housebreaking and one further charge of stealing (both committed on 5 April 1994) he was ordered to perform 200 hours unpaid community service and placed on probation for three years.
In his submissions to this Court the applicant's Counsel has argued that the sentences of five years' imprisonment are manifestly excessive and he has submitted that the learned sentencing Judge did not have sufficient regard to the applicant's youth, to his pleas of guilty and to the housebreaking offences having occurred at the suggestion of Camilleri who lived next to the premises broken into.
In his sentencing comments the learned sentencing Judge referred to a number of matters including his view that the five offences to which the applicant had pleaded guilty on 24 March 1995 were serious and prevalent, the applicant's prior criminal history, the fact that in his view the pleas of guilty were not entered at any early time nor as a result of remorse, his view that the applicant had demonstrated a lack of respect for authority and members of the community; and he distinguished the sentence of Camilleri by saying that the circumstances in Camilleri's case were very different, that he apparently had no previous convictions and that he was a much younger person at the time.
The learned sentencing Judge said that to determine the appropriate overall sentence for the offences (other than the suspended sentence) he considered it appropriate to determine a head sentence "designed to indicate your overall criminality".
Towards the end of his sentencing comments he said this:-
"Your conduct has shown a lack of respect for authority and a complete lack of respect to members of community whose property you have interfered with, either by using a vehicle or breaking and/or entering their houses and stealing property. As I say you haven't taken advantage of the opportunity that was given to you when your suspended sentence was imposed last year. In the circumstances I am left with no alternative other than to impose a substantial custodial sentence."
It is true that in his sentencing comments the learned sentencing Judge did not mention the applicant's age but in the view which I take of the matter it cannot be said that His Honour lost sight of this aspect of the case. The applicant is a man who committed a number of the offences while on bail. He also appears to have been regularly in the precincts of the Southport Court House. On his previous Court appearances he had been offered almost all the sentencing options. One of these was the suspended sentence on 4 August 1994 but it did not take him very long to cause that sentence to be activated. He has thumbed his nose at the law for the last few years. He is no respecter of persons or property. I consider the comments of the learned sentencing Judge which I have last quoted were well justified.
One matter which has caused some concern during argument is the circumstance that the offences in the above Counts 1, 2, 3 and 4 to which the applicant pleaded guilty on 24 March 1995 were all committed in April 1994 and well before the applicant was sentenced by the District Court Judge on 4 August 1994 and given a suspended sentence.
It emerged during argument that the reason why these matters were not then before the learned sentencing Judge on 4 August 1994 was that the applicant was going to trial on each of these four charges. Only the fifth count was in respect of an offence committed after 4 August 1994.
The task which the learned sentencing Judge had on 31 March 1995, when sentencing the applicant for the above five offences called for the operation of the "totality" principle referred to in Mill (1988) 166 C.L.R. 59 and described in Griffiths (1989) 167 C.L.R. 372 at 381 as "appropriate to a series of related offences committed in a short period".
In Mill (at p. 63) the Court approved the statement in Thomas, Principles of
Sentencing, 2nd edition, (1979) pp. 56-7 which concluded:-
"When...cases of multiplicity of offences come before the Court, the Court must
not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."
That is not exactly the situation which confronts the Court in this case where the learned sentencing Judge fixed a head sentence.
At p. 66 of Mill the Court said:-
"The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing Court, must be seen to be appropriate in all the circumstances."
The head sentence imposed by the learned District Court Judge on 4 August 1994 was a suspended sentence for twelve months. That sentencing Judge was quite unaware of the previous offences committed in April. In my respectful view the learned sentencing Judge on 31 March 1995 was entitled to consider, as he did, the overall criminality of the applicant during the period from late 1992 to 6 October 1994 and fix a head sentence which bore a "proper relationship to the overall criminality involved in the various offences being dealt with". (See Larsen (1989) 44 A. Crim. R. 121 at p.126).
In my respectful view the learned sentencing Judge did this. No error in the exercise of the sentencing discretion has been shown nor have the sentences of five years imposed for the two year housebreaking sentences been shown to be manifestly excessive.
Further, the learned sentencing Judge's decision not to recommend any early parole was justified. I would dismiss the application.
0
0