R v Shipman

[2004] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

R v Shipman [2004] QCA 171

PARTIES:

R
v
SHIPMAN, Bradley Scott  
(applicant/appellant)

FILE NO/S:

CA No 37 of 2004
DC No 1931 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

20 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2004

JUDGES:

McMurdo P and Chesterman and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted

2.   Appeal against sentence allowed to the limited extent of substituting a sentence of five years imprisonment for the six years imprisonment imposed on count 5 in Indictment 1931 of 2003

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – DISCRIMINATION BETWEEN CO-OFFENDERS – where applicant convicted on plea of guilty to eight offences, including armed robbery and dangerous operation of a motor vehicle whilst adversely intoxicated, and three summary offences – where sentenced to effective period of imprisonment of 6 years with a recommendation for eligibility for post-prison community based release after two years – where applicant had very lengthy criminal history – where co-offender for armed robbery and dangerous driving sentenced to four years imprisonment suspended after 12 months – where co-offender ten years younger than applicant with less serious criminal history – where co-offender had not committed additional offences with which applicant was charged – whether applicant could have justifiable sense of grievance about parity of sentences – whether sentence was manifestly excessive

COUNSEL:

The applicant appeared on his own behalf
R G Martin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  On 16 January 2004 the applicant pleaded guilty to eight offences contained in two indictments and three summary offences were also taken into account.  The three count indictment contained one count of fraud, one count of being in a dwelling and stealing and one count of breaking and entering premises and stealing.  He was sentenced to four years imprisonment with a recommendation for parole after two years in respect of the last two counts and to 12 months imprisonment on the first.  The five count indictment contained one count of entering premises and stealing, one count of unlawful use of a motor vehicle with a circumstance of aggravation, one count of entering premises with intent, one count of armed robbery and 1 count of dangerous operation of a motor vehicle whilst adversely intoxicated.  In respect of the last two counts he was sentenced to six years imprisonment with a recommendation for parole eligibility after two years and in respect of the last offence, disqualified from holding and obtaining a driver's licence for four years.  As to the remaining offences he was sentenced to four years imprisonment with a recommendation for eligibility for parole after two years.  The summary offences were possession of property suspected of being stolen, for which he was sentenced to two months imprisonment, and using insulting words and disorderly behaviour for which he was convicted but not further punished. 

One difficulty that immediately arises is in respect of the sentence imposed for dangerous operation of a motor vehicle whilst adversely intoxicated.  The maximum penalty for that offence is, as the respondent concedes, five years imprisonment: see s 328A(2) Criminal Code.  The sentence imposed on that offence was therefore unlawful and must be amended.  The question remains whether the remaining sentences are manifestly excessive. 

The applicant was born on 10 October 1972 and was 30 when he committed the offences and 31 at sentence.  He has a very extensive criminal history for property offences commencing in the Children's Court in 1987 when he was still 14.  As an adult he continued to regularly commit offences against property and to commit street offences.  He was given the benefit of many community based orders including three years probation in 1990 and again in January 1991.  He was sentenced to an effective term of one years imprisonment in February 1991 when he committed further offences concerning motor vehicles, one of which he committed just days after having been placed on probation.  Later that year his probation order was breached and he was dealt with for yet further offences of dishonesty committed in 1989 and 1990.  Later again in 1991 he was convicted of more offences, this time not only against property but also assault occasioning bodily harm and resisting police.  He has unrelentingly continued to commit property and street offences on a regular basis for which he has been sentenced to reasonably modest terms of imprisonment up until his sentence on these matters.  His printed criminal history, tendered at sentence, extended into New South Wales and covered some 11 pages.

Apparently this appalling criminal history is attributable to his alcoholism.  According to his counsel at sentence he was raised by his grandparents.  His grandmother died when he was aged only 11 or 12 and his life went on a downward spiral which seems to have continued ever since.

The offences on the three count indictment occurred in this manner.  In September 2002 a Mr Stevens had a cheque stolen from his car.  The offender deposited the cheque in his own account at the Commonwealth Bank in Toowoomba and received $1,729.15.  In late October 2002 the applicant was staying in the home of a kindly householder who took pity on him because he was homeless.  He repaid her generosity by stealing a compact disc player, compact discs and other property, $970 worth of her property remains unrecovered.  In November 2002, a business premises in Gympie was broken into and police located the applicant's fingerprints on the broken window.  A briefcase was stolen.

The offences contained in the 5 count indictment occurred as follows.  On 30 December 2002 the applicant entered the Sheraton Hotel foyer and stole a set of car keys.  He then went to the car park and used the keys to take a car which he used to commit the other offences on the indictment.  Later that day, a person, apparently his co-offender Windle, entered a convenience store and enquired about "scratch-it tickets".  Windle suddenly produced a metal tyre lever about 30 centimetres in length and demanded that the attendant open the till and give him the money.  The complainant ran away to the back of the store.  Windle took about $38 worth of Instant Casket Tickets before decamping.  It seems this applicant's role may have been to keep watch for Windle in the get-away vehicle.

Windle and the applicant were located by police shortly afterwards.  He and Windle drove off in the vehicle which the applicant had earlier stolen. 

It seems the applicant was the driver of the vehicle.  The police pursued the car along Main Street, Kangaroo Point towards the Storey Bridge.  The applicant drove the car through a red light at the intersection of River Terrace and Main Street, turning left into River Terrace, accelerating sharply away from the corner and heading south along River Terrace at about 100 kilometres per hour in a 60 kilometre zone.

The car continued on its dangerous path, through suburban
streets at high speeds.  It travelled at about 70 kilometres per hour through a 15 kilometre per hour speed limit in a shopping complex.  It was driven on the wrong side of Ipswich Road for about 750 metres and another motor vehicle had to swerve to avoid a collision.  The applicant continued to drive the car in a dangerous manner along Ipswich Road, over the Rocklea overpass through Browns Plains and towards Beaudesert, at one point travelling through a red light.  The car finally stopped on a dirt road in the Flagstone area.  The applicant jumped out of the driver's seat and attempted to run away.  He was apprehended and restrained by police.  He had a blood alcohol reading of 0.171 per cent.

His co-offender, Windle, was sentenced to an effective sentence of four years imprisonment suspended after 12 months on the robbery and dangerous operation of a motor vehicle whilst intoxicated.  The applicant's main contention appears to be that there should have been greater parity between the sentence imposed on him and that imposed on Windle.  Windle had a much lesser criminal history and was considerably younger, aged 22 at sentence; nor did he have the additional offending to which this applicant pleaded guilty. 

These reasons justify the differing sentences imposed on Windle and this applicant.  The applicant could have no justifiable sense of grievance about the different sentence imposed on Windle. 

The applicant is a mature aged man with a shocking criminal history for like offences.  His recidivism is of grave concern.  Whilst alcoholism may be some explanation it is no excuse.  If he is to have any hope of rehabilitation he is going to have to address his alcohol addiction in the future.  The particularly concerning offences here are those of armed robbery and dangerous operation of a motor vehicle whilst intoxicated.  Because of the potentiality of injury to others, both offences deserved heavy deterrent penalties.

The applicant has been sentenced to an effective period of six years imprisonment with a recommendation for eligibility for parole after two years.  That is an entirely appropriate sentence reflecting this applicant's overall criminality for all the offences on which he was sentenced.  It is in no way manifestly excessive.  The sentence imposed of six years imprisonment on the dangerous operation of a motor vehicle whilst intoxicated was, however, for the reasons given earlier, unlawful. 

I propose the following order.  Application for leave to appeal allowed to the limited extent of substituting a sentence of five years imprisonment for the six years imprisonment imposed on count 5 in indictment No 1931 of 2003.

CHESTERMAN J:  I agree.

ATKINSON J:  I agree.

THE PRESIDENT:  That is the order of the Court.