R v Sheen

[1999] QCA 129

99.129

COURT OF APPEAL

McMURDO P PINCUS JA McPHERSON JA

CA No 12 of 1999
THE QUEEN
v.

ANDREW ROBERT SHEEN

BRISBANE
..DATE 15/04/99
150499 T13/JB M/T COA75/99
THE PRESIDENT: The applicant pleaded guilty on 14
December 1998 in the District Court at Rockhampton to
six counts of unlawful possession of a motor vehicle,
four counts of receiving stolen property, one count of
stealing, one count of fraud and two counts of breaking
and entering premises and committing an indictable
offence.

On 16 December 1998 he was sentenced to two and a half years' imprisonment on each count concurrent with each other but cumulative upon the sentence he was already serving. As no parole recommendation was made in respect of the earlier sentence, or in respect of this sentence, he will be eligible for release on parole after serving half the combined sentences less the declaration made as to time already served, in this case it seems in approximately April 2002.

The applicant claims the sentence was manifestly excessive; that these offences occurred in the same period as the drug offences to which he was earlier sentenced and that some of the stolen goods involved in these offences were used in the drug production and that therefore he should have received a sentence concurrent and no longer than the sentence imposed in the Supreme Court.

His prior criminal history includes convictions for
dishonesty since 1989, the most serious being an armed
robbery in company for which he was sentenced to six
150499 T13/JB M/T COA75/99
years' imprisonment in 1993. He has also been sentenced
to imprisonment for drug offences, most recently on 26
October 1998 when he was sentenced to the six years'
imprisonment for trafficking in cannabis and to lesser
sentences on other drug-related charges.

There is nothing to suggest in the sentencing remarks of Justice Demack on that occasion that these offences were taken into account when imposing the term of imprisonment of six years. The sentence the subject of this application was made cumulative upon that six year sentence.

The facts of the subject offences are as follows. The applicant, and his co-offenders, came to the attention of police in November 1997, originally in respect of offences of producing, possession and supply of the dangerous drug cannabis. These offences constituted counts 1 to 3 inclusive of the offences on which the applicant was sentenced by Demack J on 26 October 1998.

In the course of that investigation a large amount of stolen property was found in the possession of the applicant and his two co-accused Bailey and Shaw. The property included motor vehicles, a boat and a trailer.

In some cases compliance plates and chassis numbers on

the motor vehicles had been changed. The boat and
trailer had been repainted to disguise their identity.
One stolen Toyota utility was on-sold to a car yard for
$10,000. The applicant claimed to have paid $6,000 for
150499 T13/JB M/T COA75/99
it. He assisted others in breaking and entering
premises in Townsville and stealing property. He stored
property stolen by others intending to sell it. The
total value of the property involved in the offences to
which the applicant pleaded was over $100,000.

Whilst on bail in respect of the first lot of drug offences and these property offences the applicant committed further drug offences including the offence of trafficking, for which he was sentenced by Demack J to six years' imprisonment.

Bearing in mind the professional nature of the property
offences, the applicant's substantial criminal history
and the amount of property involved, the learned
sentencing Judge stated that, "The objective
circumstances of the offences warrant a sentence of the
order of five years' imprisonment."

Because of the applicant's co-operation with the authorities, his very early plea of guilty, his statement of remorse made at sentence and because he was already serving a sentence of six years' imprisonment the learned sentencing Judge imposed an effective cumulative sentence of two and a half years' imprisonment.

The applicant had not demonstrated at the time of
sentence any real prospects of rehabilitation having
150499 T14/TW12 M/T COA75/99
committed drug-related offences including the offence of
trafficking whilst on bail.

In all the circumstances of this case it was proper to impose a cumulative sentence for these serious property offences. That cumulative sentence was moderated to stop it from being a crushing one and to reflect the applicant's co-operation, early plea and remorse.

It cannot be said the sentence imposed by the learned sentencing Judge below was outside the range of a sound exercise of discretion.

I would refuse the application.

PINCUS JA: I agree.

McPHERSON JA: I also agree.

THE PRESIDENT: The order is the application is refused.

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