R v Shoo

[1993] QCA 239

IN THE COURT OF APPEAL [1993] QCA 239

SUPREME COURT OF QUEENSLAND

C.A. No. 24 of 1993

Brisbane

[R. v. Shoo]

T H E Q U E E N
v.
MICHAEL GEORGE SHOO

Appellant

The President
Mr Justice Pincus

Mr Justice Thomas

Judgment delivered 23/06/93
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL ALLOWED. THE SENTENCE OF IMPRISONMENT FOR 18 MONTHS FOR THE OFFENCE OF STEALING ONLY IS SET ASIDE AND A CUMULATIVE PERIOD OF IMPRISONMENT FOR 6 MONTHS IS SUBSTITUTED. THE SENTENCING JUDGE'S RECOMMENDATION WITH RESPECT TO PAROLE IS RESCINDED. THE SENTENCE OF 18 MONTHS IMPRISONMENT IN RESPECT OF THE OFFENCES OF UNLAWFUL USES OF MOTOR VEHICLES IS NOT INTERFERED WITH.

CATCHWORDS:	CRIMINAL LAW - SENTENCE - Sentencing Judge took into account against the appellant the commission of an offence with which he was not charged - whether sentence manifestly excessive.
Counsel:	Mr B. Butler for the Crown Mr T. Rafter for the appellant
Solicitors:	Director of Prosecutions for the Crown Legal Aid Office for the appellant
Hearing Date(s):	12/05/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 24 of 1993

Brisbane
Before The President

Mr Justice Pincus Mr Justice Thomas

[R. v. Shoo]

T H E Q U E E N

v.

MICHAEL GEORGE SHOO

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23/06/93

On 16 December 1992, the applicant was convicted in the District Court at Ipswich of one offence of stealing a quantity of property from a motor vehicle on or about 15 January 1992. An appeal against conviction was abandoned but the applicant has applied for leave to appeal against sentence.

Earlier, on 17 January 1991, the applicant had been sentenced to three months' imprisonment and placed on probation for three years following his conviction for nineteen offences of unlawful use of a motor vehicle during April and May 1990. The offence of stealing on 15 January 1992 of which the applicant was convicted on 16 December 1992 constituted a breach of the probation order which had been made 11 months previously.

On 18 December 1992, the applicant was sentenced to imprisonment for eighteen months in respect of the nineteen offences of unlawful use of a motor vehicle and to a further eighteen months imprisonment, to be served cumulatively, in respect of the offence of stealing. Further, the judge concluded his sentencing remarks with the following statements:

"The legislature has indicated its strong view on not releasing any person who is a potential danger to another person or persons. The community has a real interest in being protected against people who have absolutely no respect for other people's property. It is clear that you have absolutely no respect for other people's motor vehicles and its parts and I would strongly recommend that you not be released until the authorities are satisfied on appropriate material that you are not a danger to other people's property, particularly motor vehicles and their parts. The appropriate order would seem to be that three years should mean three years, that you should serve the full three years.

I would further recommend that you not be released to community based supervision unless and until the relevant authorities are satisfied that you are psychiatrically and psychologically suitable for such release, the authorities taking into account my previous remarks in relation to your lack of respect for other people's properties."

The applicant, who was born on 16 March 1972, was twenty years old when sentenced and had a previous conviction for house breaking when he was seventeen, for which he was placed on a good behaviour bond for nine months.
The circumstances leading up to the applicant's conviction on 16 December 1992 for stealing on 15 January 1992 were that the complainant's motor vehicle was removed from a car park in Ipswich between 8.30 p.m. and 11.00 p.m. on 14 January 1992 and driven to a quarry site at Kholo. On the afternoon of the following day, 15 January 1992, the applicant and others were apprehended by police at the quarry site. A search of the boot of the applicant's vehicle revealed a large quantity of property taken either out of, or from, the complainant's vehicle. The evidence indicated that other property had been taken out of the complainant's vehicle the previous evening.
Despite the circumstances, in which the applicant was effectively caught red handed, he denied stealing the property and entered the witness box at his trial and swore to a patently false account of what had occurred. In his sentencing remarks, the trial judge said:

"After serving the three month's imprisonment and about nine months after you came out of goal, you committed the offence before the court. I will say at the outset it would be unsurprising if the jury had no difficulty quickly rejecting the preposterous story you told to try and pull the wool over the eyes of the jury. One got the very real impression that you had seen the prosecution evidence and duck tailed your evidence around that; more or less learnt a story off-by-a-heart and had certain of your answers ready to drop in such as the quite insulting suggestion by you to explain certain things away that you were easily lead. The prosecution submission had obvious merit that ... despite your planning, you were caught red handed and you had plenty of explaining to do, and as Crown Council submitted, you came up with this Disneyland, preposterous version that was an insult to the intelligence of any right thinking balanced citizen."

There was no submission that the attitude revealed by these statements was erroneous, and it is plain that the applicant could rationally expect no leniency on account of his conduct after he was apprehended or during the course of the trial. As the sentencing judge noted quite correctly, the applicant showed absolutely no remorse at all.

However, a difficulty arises from the following statements by the sentencing judge:

"I am comfortably satisfied that this had an element of professionalism about, that there was quite some planning in it and, in my view, having assessed you, I would say the reasonable conclusion is that you were the ringleader. You are quite a cunning, devious person. The circumstances suggest as the only reasonably conclusion that you and your Gemini, with at least Hall and possibly Carlyle, went to town sometime between 8.30 p.m. and 11.00 p.m.. That the complainant's motor vehicle was broken into and driven possibly by Hall or Carlyle - more likely by Hall; that the vehicle was taken to be secreted out near the old mine are Kholo; that you followed in your Gemini; that certain property, certainly including Exhibit 16, was stolen from the vehicle on the evening of the 14th; that you then drove Hall and, I imagine, Carlyle, back to Hall's place at Riverview with the plan being that the three of you would return the next day to do a nice professional job in stripping motor vehicle of valuable parts.

... The reason the vehicle was taken to the spot near Kholo, is obvious: that it is a very secluded spot in which the odds would be you would have a good chance of not being spotted undertaking your criminal behaviour. If you and your fellow criminals had stripped the vehicle at night time, it would have the extra difficulties of darkness, even if you had your Gemini car lights on, or whatever, but it had the other problem that if the police on their rounds went past this place, as they might have because apparently the inference is that is a popular spot for stripping motor vehicles, if the police had discovered you there at night, it would be pretty hard to work out an excuse for being there. When you and your fellow criminals planned to go back the next day to strip the vehicle, you had the benefit of daylight and the pretty lame, phoney excuse that you were there for a swim, when the much more satisfactory swimming spot near Kholo bridge was not far away."

This passage suggests that His Honour took into account as circumstances of aggravation his view that the applicant was guilty of an additional offence different from that of which he was convicted, namely the unlawful use of the complainant's motor vehicle. That is impermissible: R. v. Boney Ex parte Attorney-General (1986) 1 Qd.R.190. It may be that His Honour intended to refer to preceding circumstances on the contextual basis recognized in R v. Jobson (1989) (2) Qd.R. 464, 466-7, but His Honour's remarks seem to go beyond this.

As the division of opinion in Boney illustrates, the practical application of the principle that the prisoner should not be punished for an offence of which he has not been convicted can cause difficulty. That is so, for example, where the Crown relies on events forming part of the history of the development of a guilty passion, in a case of a sexual character: Reiner (1974) 8 S.A.S.R. 102, Cooksley (1982) Qd.R. 405. Andrews S.P.J. in Cooksley reviewed a number of authorities dealing with that problem, which include various explanations of the way in which incidents of sexual misconduct other than that specifically charged may properly be treated as relevant on sentence. One can see that there may, in some instances, be a difficulty in reconciling the practice referred to in Cooksley with the basic rule that the offender may not be punished for offences other than those for which he has been convicted, as also in determining whether the approach taken in Cooksley can be applied to property as well as sex offences. Here, the learned primary judge has, with respect, simply taken into account against the applicant, when sentencing him, the commission of an offence with which he was not charged; the procedure set out in s.189 of the Penalties and Sentences Act 1992 was not followed.

It does not follow that the sentencing judge was necessarily wrong in the sentences which he imposed, but his comments make it appropriate for this court to reconsider the discretion which he exercised.

Support for this course is provided by the statements, set out above, which he made at the conclusion of his sentencing remarks in which he recommended that the applicant not be considered for parole until he had served the full cumulative period of imprisonment to which he was sentenced. There was no adequate basis for this course.
Although its impact was considerably lessened by the offence of stealing on 15 January 1992, the applicant is entitled to the benefit of a probation report which stated that, after his release from prison, he had responded well to probation, having reported consistently and invariably been courteous, co-operative and open.
In all the circumstances, we consider that a total sentence
of 2 years was appropriate. We would not interfere with the
sentence of 18 months imprisonment in respect of the offences of
unlawful use of motor vehicles but would grant the application
for leave to appeal and allow the appeal in respect of the
offence of stealing. The sentence of imprisonment for 18 months
for that offence is set aside and a cumulative period of

imprisonment for 6 months is substituted. The sentencing

judge's recommendation with respect to parole is rescinded.