R v Singleton

[1999] QCA 381

99.381

COURT OF APPEAL

McPHERSON JA DERRINGTON J CHESTERMAN J

CA No 164 of 1999
THE QUEEN
v.

BARRY SINGLETON Applicant

BRISBANE
..DATE 09/09/99
090999 T07/LZG14 M/T COA222/99
HIS HONOUR: On 21 April 1999, on pleas of guilty, the
applicant was sentenced to three and a half years'
imprisonment with a recommendation that he be considered for
parole after 18 months. The charges against him consisted
of three counts of stealing and eight counts of receiving in
respect of property totalling an excess of $13,500.

The applicant has an appalling record of dishonesty and other offences but his record of dishonesty is what is relevant here. He was, at the relevant time, plainly a professional fence, involved in what His Honour the learned sentencing Judge described as a slick, well-conducted operation which the applicant described euphemistically in his discussion with the under-cover operative as "going shopping".

It would seem that if anybody wanted to buy stolen property
he need only mention it to the applicant and he would
arrange to have it stolen and, indeed, it seems as though
there were specific instances of that at the time. There
was some complaint to suggest that the operative had
instigated the offences by asking the plaintiff for
particular property. However, it is quite plain that that
was in accordance with the applicant's normal way of doing
business and that the police were targeting him so that
their method were only designed to obtain evidence as to the
way in which he carried out his business.
090999 T07/LZG14 M/T COA222/99
The matter is complicated by the fact that these offences
all took place during a period during 1 October 1997 and the
end of December 1997, and the applicant had been sentenced
on 31 March 1998 in the Brisbane Magistrates Court on
various other offences of a similar kind during the same
kind.

There were two counts of dealing, in respect of which he received sentences of imprisonment of six months and eight months respectively and a count of possession of tainted property during this period for which he received a sentence of 12 months imprisonment, all of them to be cumultive.

There were also two sentences of four months and six months respectively for breach of earlier suspended sentences, one of which related to a count of stealing during this same period which had been dealt with in December of 1997.

It was suggested that the police were in some way abusing
the system because they didn't charge the applicant with all
of the offences so that he could be dealt with on 31 March
1998. It is irrelevant to go into those matters because His
Honour rightly for the benefit of the applicant took into
consideration the feature that he should address the
totality of the offences of which the applicant had been
dealt with, and that should include the sentences that had
been imposed upon him on 31 March 1998. His Honour
specifically reduced the sentence which he imposed for these
offences for that reason.
090999 T8/SJ3 M/T COA222/99
He approached it in this way, he said that the learned
counsel on both sides had submitted much the same effect,
that the sentences before him uncomplicated by other factors
would normally attract a sentence of about five years'
imprisonment, having regard to all the circumstances
including the professional nature of the applicant's
business and his prior criminal history. His Honour then
said that in respect of the application of the totality
principle he should look at the sentence which he would have
imposed had all the matters been before him including those
matters for which the applicant had been sentenced on
31 March 1998.

He then said that he felt that he should double the sentence of imprisonment that had been imposed upon him on that earlier occasion and subtract that figure from the sentence which he would have imposed had he been dealing with all the matters at that particular time and he arrived at a result of three and a half years' imprisonment. Now, it is quite implicit in that exercise that he was saying that if he was sentencing on all the matters including the earlier matters he would have usually imposed a sentence of five and a half years' imprisonment.

Now, in that respect, the normal period for consideration
for parole would be something like two and three-quarter
years after the sentence was imposed. His Honour's
recommendation for consideration for parole after 18 months,
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if added to the period before which the applicant would have
been considered for parole in respect of the earlier
offences, would amount to two years by comparison with the
normal period of parole after two and three-quarter years.
On the hypothetical exercise that His Honour discussed that
would demonstrate that His Honour had allowed the applicant
something like nine months of what would normally have been
expected if the matters had all been dealt with at the same
time and in the application of the totality principle.

His Honour therefore allowed a quite substantial period of deduction in calculating the period for which consideration for parole would be recommended to account for the applicant's plea of guilty.

Quite plainly, this was perfectly adequate and there is no basis upon which the sentence could be attacked. It might be added that His Honour was probably slightly erroneously generous to the applicant in his original exercise of doubling the original sentence and then deducting it from the sentence that he would have imposed.

My understanding is that it should not be done in respect
simply of a sentence that is imposed but in respect of time
actually served when such an exercise is performed.
However, that aside, there is no error demonstrated in
relation to His Honour's calculations and indeed learned
counsel for the applicant very properly acknowledged that
090999 T8/SJ3 M/T COA222/99
with a proper regard for the way in which His Honour
approached the matter there was really nothing for the
applicant to complain about. In my view the application
should be refused.

McPHERSON JA: I agree.

CHESTERMAN J: I agree the application should be refused.
Given the age of the applicant and his criminal history he
got off very lightly.

McPHERSON JA: The order of the Court is that the application is dismissed.

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