R v Rose

[1996] QCA 290

IN THE COURT OF APPEAL	[1996] QCA 290
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No.191 of 1996
Before	Derrington J. Mackenzie J. White J.
[R. v. Rose]

THE QUEEN

v.

DIANNE OPAL ROSE

(Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment Delivered 23 August 1996

The applicant pleaded guilty on ex officio indictment on 9 May 1996 to 12 counts of false pretences and 1 of receiving ("the second series of offences"). When these offences were committed between 31 July 1995 and 16 October 1995 she was on parole following conviction in February 1994 of a large number of offences of dishonesty ("the first series of offences") for which she had been sentenced to 4 years imprisonment with a recommendation that she be considered for release on parole after 1 year and 3 months. She was sentenced to 2½ years, cumulative upon the sentences she was already serving, with a recommendation for parole after 12 months from the date of sentence for the second series of offences.

The applicant was 32 years of age and has a very long criminal history dating
from 1977, principally for offences of dishonesty and drug offences. The receiving

charge in the present indictment related to a keycard and a health card belonging to another woman, which had been stolen. The false pretences were committed when she pawned property she did not own under the name of the woman from whom the cards had been stolen. She obtained $3,120 from pawnbrokers although the property, the owners of which have not been identified, was worth more than that sum. Before the learned sentencing judge, little could be said on behalf of the applicant except that she had pleaded guilty on an ex officio indictment, that she had had a hard life, that she had a drug problem and that she had received good references from persons working in the Corrective Services area. Apparently she was a cooperative prisoner.

The submission that the sentence is manifestly excessive relies on an analysis of the overall effect of the sentences imposed and the time spent in custody under them. After apprehension for the first series of offences the applicant spent about 10½ months in custody on remand. After serving a further 5½ months following sentence, she was released on parole in August 1994. Her parole was then cancelled on 14 September 1995, apparently for reasons unconnected with the second series of offences. However she was apprehended for the second series of offences and was returned to custody on the 26 October 1995. She then spent about 6½ months in custody before being sentenced. This period of 6½ months in custody was not solely attributable to the present offences, although the Crown conceded that she may well have been admitted to parole again in respect of the sentences for the first series of offences if the second series of offences had not intervened.

Aggregating all periods spent in custody to the time of sentence for the second
series of offences the applicant had served 22½ months imprisonment. The effect of a
12 month non-parole period from the date of sentence would be that, if released as

soon as eligible, she would have served 34½ months of head sentences totalling 78 months, that is to say only 4½ months less than the statutory non-parole period for the combined head sentences.

Mr Hamlyn-Harris for the applicant did not seriously contend that a 2½ year sentence would have been manifestly excessive for the second series of offences if they had stood in isolation. However he submitted that a cumulative sentence of that length was in the circumstances of the case manifestly excessive. He submitted that the effect of the non-parole period of 12 months from the date of sentence was manifestly excessive in its operation because of the proportion of the combined sentences which would be spent in custody. He submitted that a reduction of the statutory non-parole period by only 4½ months offended the totality principle.

Where a person is already serving a substantial term of imprisonment and is to be sentenced for other offences in circumstances where a cumulative sentence is appropriate, it is necessary to consider what the total effect of the sentences will be to ensure that it is not unduly onerous. Where the imposition of a cumulative sentence of a duration which would, standing alone, be appropriate but which would have an excessive effect in the particular circumstances of the case, appropriate allowance must be made for that factor in the sentence actually imposed (Mill v. The Queen (1988) 166 CLR 59; R. v. Clements, CA 279/92).

In R. v. Del Arco (CA 289/93) it was recognized that where an offender took improper advantage of parole to commit further offences significant additional punishment was called for to reflect the gravity involved in the abuse of parole. However it was also recognized that care must be taken to ensure that the effect of a

cumulative term did not introduce some injustice in the particular circumstances of the
case.

In the present case, shortly before she was apprehended for the second series of offences, the applicant's parole had been cancelled for reasons unconnected with them. While she may have been further considered for parole had the second series of offences not been committed, in practical terms she lost the opportunity for further parole once she was taken into custody after committing those offences.

This chain of events calls for little sympathy, and, indeed, called for significant further punishment. Nevertheless, the overall effect of the sentences must still be given due consideration. The imposition of a cumulative sentence was justified, but the effect of the additional 2½ years head sentence and the new non-parole eligibility date was that the applicant must serve, at the least, all but 4½ months of the automatic non- parole period if there had been a head sentence of 6½ years. Even making due allowance for the applicant's recidivism and its consequence that she was not serving the period before sentence for the second series of offences by reason only of those offences, the outcome of the head sentence of 2½ years cumulative and the associated non-parole period of 12 months is unduly onerous.

In our view the head sentence of 2½ years cumulative, with a non-parole period of 12 months from the date of sentence is, in its operation, manifestly excessive. In our view a sentence of 18 months cumulative upon the sentence which she was serving with a recommendation for consideration for parole after 6 months is appropriate.

We would grant leave to appeal, set aside the sentence of 2½ years cumulative
upon the previous sentences and the recommendation that the applicant be considered
for release on parole after 12 months and substitute therefor a sentence of 18 months

imprisonment cumulative upon the sentence which she is presently serving with a recommendation she be considered for release on parole after 6 months from the date of sentence in the District Court.