R v Pryor

[2002] QCA 494

SUPREME COURT OF QUEENSLAND

CITATION:	R v Pryor [2002] QCA 494
PARTIES:	R v PRYOR, Allan George (applicant)
FILE NO/S:	CA No 204 of 2002 DC No 427 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EXTEMPORE ON:	14 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	14 November 2002
JUDGES:	de Jersey CJ, Williams JA and Mullins J Separate reasons for judgment for each member of the court, each concurring as to the order made
ORDER:	The application is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant appeals against sentences imposed for housebreaking, stealing and assault – where largest sentence imposed was 20 years – where applicant also convicted previously of 4 rapes and other housebreaking offences – whether it was appropriate for the sentencing judge to sentence as if all matters that had been the subject of the sentences since 1989 were before the Court – consideration of totality principle
COUNSEL:	A Vasta QC for the applicant D Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  On 11 June this year the applicant was sentenced in the District Court on 25 counts contained in three indictments for offences of house breaking, stealing, receiving and assault occasioning bodily harm.  The offending occurred over a long period of time, between 1983 and 1999.  Over that period the applicant's age ranged from 16 years to 32 years.

He was 34 years old when he was sentenced following pleas of guilty and he was sentenced to various terms to be served concurrently, the most substantial being terms of 20 years for what used to be called burglary.  He bore the burden of a substantial criminal history.  For offences of rape he was sentenced in June 1989 to eight years' imprisonment; in July in the year 2000 to 14 years' imprisonment; in September 2000, 15 years; and then in October 2000, life.

Most of the instant offences, indeed all but two, preceded the rape for which he was imprisoned in June 1989 and the two to which I have referred, and I will come back to them, followed his release on parole.  The learned sentencing Judge pointed out that the applicant was a serial serious offender.  The counts of burglary, upon which we should focus today, involved the applicant's entering houses during the night, often with women and others present, and stealing. 

The essential argument for the applicant is that had he been sentenced in June 1989 when he was 21 years old and with only minor prior convictions, accounting for all but, as I say, two of the offences before the sentencing Judge, he would not have been given a 20 year sentence.  Indeed, he would not have been sentenced to terms exceeding eight years' imprisonment.  It was submitted essentially that the learned Judge failed to have regard to the so called totality principle. 

The reality is that the applicant was sentenced as a serial house breaker who preyed on or imperilled the security of vulnerable women in particular, in their homes at night time.  When he was dealt with in the District Court this year he presented to that Court as someone who had been sentenced for four counts of rape involving the entering of dwellings mostly in the night time.  He presented as a person who, upon release from prison on parole, resumed his offending.

When he was sentenced for these offences he was, as I indicated, subject to the life term imposed in October 2000 with an earliest date for parole consideration after 15 years.  The 20 year terms as imposed would not necessarily increase the time the applicant will have to spend in prison.

The learned sentencing Judge's approach was criticised by counsel for the applicant on the basis that it was not sufficiently discriminating as between the counts.  But when one carefully analyses the progression of offences, especially having regard to the material at pages 38 and following of the record, it does appear that the Judge discriminated, and to my mind appropriately, as the offending became progressively more serious and with the applicant's increasing age.
Of course, 20 years is a very substantial term of imprisonment for burglary, even in the serious circumstances of these offences.  But it is not right to assess the reasonableness of those terms simply by asking whether they would have been imposed had the sentencing occurred back in 1989.  And that is because the reality is faced by the sentencing Court.  The sentencing Court in the year 2002 knew of the graphic gravity of the applicant's serial offending and was obliged to craft sentences which would achieve sufficient special deterrence and protection of the community.  In my view the 20 year sentences may, on that basis, be justified.

There is another way of looking at it, if one adopts Mr Vasta's invitation that one should look at the position which would have obtained had the sentencing occurred in 1989.  At that stage the sentencing Court would have been faced with progressively increasingly serious offending which had occurred over the preceding six years.  It is quite conceivable that a Court sentencing in 1989 would therefore have contemplated the imposition of cumulative terms which could well have equalled or indeed exceeded 20 years' imprisonment.

Looked at in that way, I consider that the approach taken by the learned Judge was justified.

There was also criticism of his Honour's recommendation to the Department of Corrective Services, as he put it, that the applicant never be released from prison.  What his Honour actually said is,

"For what it is worth, my recommendation to the Department of Corrective Services, in view of the life sentences you are serving, is that you never be released from prison."

Judges are entitled to make such observations.  They do not bind the executive and I would not remove that from the record.  I would refuse the application.

WILLIAMS JA:  I agree.

MULLINS J:  I agree.

THE CHIEF JUSTICE:  The application is refused.

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