R v Shearer

[1996] QCA 213

COURT OF APPEAL

[1996] QCA 213

McPHERSON JA
DEMACK J

WILLIAMS J

CA No 130 of 1996
THE QUEEN
v.

BRETT WAYNE SHEARER

BRISBANE
..DATE 05/06/96
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WILLIAMS J: The applicant pleaded guilty to an indictment
containing 52 counts. There were 11 counts of house breaking;
14 of stealing; three of receiving; three of breaking, entering
and stealing; one of breaking and entering with intent; 17 of
attempted breaking and entering with intent and finally three of
attempted house breaking. Those offences all occurred between
10 August 1993 and 11 January 1994.

The plea of guilty was on 25 March 1996. Some of the delay can be explained by the fact that there were negotiations between prosecuting authorities and the applicant's solicitors as to the matters to which he was prepared to enter a plea.

The schedule, which was tendered before the sentencing Judge, shows that initially there were in excess of 100 charges laid by the police and they were integrated into the 52 counts to which the applicant ultimately pleaded guilty.

The learned sentencing Judge imposed sentences of four years imprisonment for the house breaking and breaking and entering and stealing counts; 12 months imprisonment on the receiving counts; and three years imprisonment on each of the others. All those sentences were to be served concurrently and there was a recommendation that the applicant be eligible for parole after serving 18 months. He also made a recommendation for counselling and treatment of the applicant whilst he was in custody.

It was not possible to put a precise value on the total value of
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property stolen but it was said by the prosecutor and accepted
by the sentencing Judge to be somewhere between $30,000 and
$50,000. Unrecovered property and damage was assessed at over
$29,000.

I would specifically note that counts 34 and 35 on the indictment related to the theft of some $10,000 worth of jewellery from a Mrs Hutcheson. A victim impact statement from her was tendered and it does appear that the jewellery in question was of particular sentimental value. None of that was recovered. That, in my view, is of some significance because of an argument addressed to this Court based on disparity. I will come to that shortly.

It appears that the property generally the subject of the charges was property that was either readily disposable for cash or property which could be used by the applicant. It was mainly electrical items or jewellery that was taken.

The learned sentencing Judge did note a submission that the accused used furniture and white goods which he had stolen to furnish his place of residence.

It should be noted that the applicant had a minor criminal history. He had been convicted in the Melbourne Magistrates Court in 1983 of theft; convicted in the Prahran Magistrates Court in 1988 of assault; and there were further convictions for assault in the Prahran Magistrates Court in 1989.

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As I have indicated the principal submission advanced by senior
counsel for the applicant was that there was disparity between
the sentence imposed on this applicant and the sentence imposed
on one Nicholas Ward. Ward was sentenced by Judge Kimmins on 21
March 1995 to imprisonment for 18 months with a recommendation
that he be eligible for parole after serving five months. There
were quite a number of counts on that indictment and it would
appear that there was only an overlapping of some eight charges
between the indictment concerning Ward and the indictment the
subject of the applicant's pleas of guilty. Significantly, it
would appear that the charge involving Mrs Hutcheson's jewellery

was not one to be found on Ward's indictment.

Ward was aged 20 years. The applicant, in this case, was older.

He was 28 at the time of the offences and 30 at the date of

sentencing.

Reference was made in the course of argument to the reasoning of the High Court in Lowe v. The Queen (1984) 154 Commonwealth Law Reports 606 and of the Court of Criminal Appeal in Cox v. The Queen (1991) 55 Australian Criminal Reports 396. The principles relevant to the question of disparity are clearly laid down in those cases. Here, the difficulty confronting the applicant is that there are no grounds for concluding that the two were being sentenced for the same or substantially the same offences. As I say there was only an overlap of eight offences.

It is difficult, and this is quite frankly conceded by counsel for the applicant, to say that a four year head sentence is 050696 D.1 T 4/JP14 M/T COA133/96

manifestly excessive given the 52 charges to which the applicant
pleaded guilty.

Ward, as I have said, was sentenced to 18 months imprisonment with a recommendation after five months. His circumstances were significantly different and I cannot deduce merely from the sentences imposed that there is some disparity between them such as would justify the intervention of this Court.

In all of the circumstances, I am of the view that the sentence in fact imposed, particularly when one has regard to the recommendation that was attached to it, was well within the range applicable to offences of this nature and extent. The application should be refused.

McPHERSON JA: I agree.

DEMACK J: I agree.

McPHERSON JA: The order is that leave is refused. The application for leave is dismissed.

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