R v Seage

[2004] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION:	R v Seage [2004] QCA 132
PARTIES:	R v SEAGE, Mark Timothy (applicant)
FILE NO/S:	CA No 23 of 2004 DC No 33 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	23 April 2004
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2004
JUDGES:	McMurdo P, McPherson JA, Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – TOTALITY – where the applicant was sentenced to 18 months imprisonment to be served concurrently with a earlier period of imprisonment – where the applicant made admissions concerning the current offence and the offences that were the subject of the earlier proceedings at the same time – where it was accepted that the earlier sentence would not have been greater had the current offence also been dealt with at the earlier proceedings – where the sentence imposed could potentially result in the applicant spending 2 ½ months in custody beyond what was required under the earlier sentence – whether the sentence imposed was manifestly excessive
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf

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Director of Public Prosecutions (Queensland) for the

respondent

THE PRESIDENT: Justice Holmes will deliver her reasons first.

HOLMES J: On the 13th January 2004, the applicant for leave to appeal against sentence was sentenced to 18 months' imprisonment on his own plea of guilty to one count of fraud.

That count encompassed 178 occasions between May 2002 and
March 2003 when the applicant visited doctors, obtained
prescriptions and with them purchased a variety of drugs,
principally morphine derivatives, using three different
Medicare cards that belonged to other people.

It was accepted that the drugs were obtained by the applicant for his own use and it was said on his behalf that he suffered a morphine addiction acquired during treatment for a serious leg injury.

At the time the sentence was imposed, the applicant was already serving a sentence imposed on 29 July 2003 of five years' imprisonment suspended after two years with an operational period of five years, as well as two shorter concurrent periods of imprisonment, for offences of attempted armed robbery, fraud, unlawful use of a motor vehicle with a circumstance of aggravation and entering a dwelling.

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He had made admissions concerning all the offences, those he pleaded guilty to in January 2004 as well as those for which he was sentenced in July 2003, in a police interview in May 2003. Nonetheless he was not charged with the current count of fraud until October 2003, and thus lost the opportunity of having all matters dealt with at once.

The applicant was between 37 and 38 years of age when the offences took place. He has a lengthy criminal history, beginning in 1981, moving from minor street and drug offences to more serious offences of dishonesty including attempted armed robbery and stealing charges in 1992, for which he received 12 months' imprisonment, two armed robberies and an attempted robbery in 1994 for which he was sentenced to five years' imprisonment with a recommendation for parole after 15 months, as well as, of course, the offences for which the July 2003 sentence was imposed.

The learned sentencing Judge had regard to the Crown's concession that the applicant was unlikely to have got a longer sentence in July 2003 had all the matters been dealt with at once, and imposed the 18 months' term concurrently with the earlier sentence. Initially he made a recommendation for parole after six months, but vacated it when he realised that such a recommendation could no longer be made on a sentence of less than two years.

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With an 18 month sentence, the applicant may or may not be
granted conditional release pursuant to s 76 of the Corrective
Services Act 2000 (Qld) after serving two-thirds of his
sentence, which means that, if he is successful, he will be
eligible for release from January 2005 on that sentence. If
he were to serve the full term of it, he would be released in
mid-July 2005. However under the July 2003 sentence, he has
the certainty of release at the end of April 2005 because 94
days were declared as already served on that sentence.

Here, in his written submissions, he submitted that the present sentence should have been tailored so that he was not at any risk of spending any time in custody beyond what was required under the earlier sentence. But it seems to me that the learned sentencing Judge was exercising his sentencing discretion in an entirely proper way in imposing an 18 month sentence for this very large number of offences. And as matters stand, it is largely in the applicant's own hands as to whether he gets an early release on his sentence; but at worst, if he were to serve the full term, he would spend about two and a half months longer in custody.

Given his history and the proportions of the offending for which he was being sentenced, that seems to me a fairly good outcome for him, and certainly not one which offends the totality principle.

I would dismiss the application for leave to appeal.

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THE PRESIDENT: I agree.

McPHERSON JA: I also agree

THE PRESIDENT: The application is dismissed.

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