R v Toms and Attorney-General of Queensland

[1996] QCA 198

IN THE COURT OF APPEAL	[1996] QCA 198
SUPREME COURT OF QUEENSLAND

C.A. No. 138 of 1996

Brisbane

[A-G v. Toms]

THE QUEEN
v.
DARRIN MARK TOMS

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Davies J.A. Pincus J.A. Demack J.

Judgment delivered 21/06/1996
Judgment of the Court.

APPEAL ALLOWED ONLY TO THE EXTENT OF MAKING THE SENTENCES IMPOSED CUMULATIVE UPON THE SENTENCES WHICH HAD, AT THE DATE OF THE LEARNED TRIAL JUDGE'S SENTENCES, ALREADY BEEN IMPOSED.

CATCHWORDS:	CRIMINAL LAW - Attorney-General's appeal against sentence - whether sentences imposed should be cumulative upon sentences which the respondent already required to serve in respect of other offences, in order to reflect the totality of the offences - possession of an instrument with intent to commit an indictable offence - stealing - unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence - attempted armed robbery - attempted breaking and entering with intent - breaking and entering with intent - breaking, entering and stealing - wilful damage to property - attempted arson.
Counsel:	Mr. D. L. Bullock for the appellant Mr. R. W. D. Collins for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant Legal Aid Office for the respondent
Hearing Date:	7 June 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 21st day of June 1996

This is an Attorney's appeal against a sentence of an effective term of seven years imprisonment from 26 March 1996, with 315 days being declared to be imprisonment already served under that sentence, together with a recommendation that the respondent will be eligible for release on parole on 26 March 1998. That sentence was, as will appear, wholly concurrent with a sentence which the respondent was already serving of 14 years imprisonment for manslaughter. The sentence for manslaughter had been imposed on 26 February 1988. He was on parole in respect of that offence when he committed the offences the subject of the present appeal.

These offences were committed between 6 March 1995 and 13 May 1995. The offences, the dates on which they were committed and the sentences imposed in respect of them were as follows:

•	possession of instrument with intent to commit indictable offence; 7 March 1995; six
months imprisonment;
•	stealing; 10 March 1995; two years imprisonment;
•	unlawful use of a motor vehicle for the purpose of facilitating the commission of an
indictable offence; 30 April 1995; two years imprisonment;
•	attempted armed robbery; 30 April 1995; four years imprisonment;
•	breaking and entering with intent; 11 May 1995; 18 months imprisonment;
•	arson; 11 May 1995; seven years imprisonment;
•	two counts of breaking and entering with intent; 12 May 1995; 18 months
imprisonment;
•	wilful damage to property; 12 May 1995; three months imprisonment;
•	two counts of breaking, entering and stealing; 12 May; two years imprisonment;
•	three counts of attempted arson; 12 May; seven years imprisonment;
•	breaking, entering and stealing; 15 May; two years imprisonment;
•	two counts of breaking and entering with intent; 15 May; 18 months imprisonment;
•	two counts of attempted breaking and entering with intent; 15 May; 12 months
imprisonment. It can be seen from this that sentences of seven years imprisonment were imposed for the

offences of arson on 11 May and the three counts of attempted arson on 12 May. However, whilst these were undoubtedly the most serious offences, that term was, in effect, imposed for the totality of the above offences.

In considering whether the effective sentence imposed was manifestly inadequate for the totality of those offences it will also be necessary to consider how it affects the totality of the sentence which the respondent will now be required to serve having regard to the fact that, when he committed these offences, he was still serving his manslaughter sentence. Before considering those questions it is convenient to say something about the offences the subject of the above sentences.

At about midday on 7 March 1995 the police saw the respondent and another man loitering in an undercover carpark at a shopping centre. They were looking inside a number of parked motor vehicles. The implements found in their possession were a screwdriver and a slide hammer commonly used for breaking into vehicles.

On 10 March 1995 the respondent stole $2,096 from Coles-Myer by arranging with a female checkout operator to hand him over that amount of money and to say that she had been held up by a person with a gun hidden under a newspaper.

There were two offences on 30 April 1995. The first involved taking a motor vehicle, in the process causing about $1,000 worth of damage to it in order to commit the other offence which was an attempted armed robbery. This was upon a store. He threatened the shop assistant in the store with a knife, ordering him to fill up his bag with money. The shop assistant refused and retaliated by trying to hit the respondent with a wire basket. The respondent ran out and escaped in the stolen getaway vehicle. He was arrested shortly afterwards but released on bail. The following offences were committed whilst he was on bail for these offences.

On the night of 11 May 1995 the respondent broke and entered an accountant's office. He ransacked the premises and set fire to them causing damage in the vicinity of $300,000, the building being virtually gutted by the fire. There was additional loss to the accountants in the vicinity of $25,000 to $30,000 for interruption of their business. No estimate could be given of the loss to the accountants' clients in consequence of destruction of their records.

There were eight offences in all on 12 May, the most serious being, as we have already indicated, three of attempted arson. On that night he entered the premises of the Whitehaven Hostel for handicapped persons at Wilston. There were about 50 residents in occupation but that part of the premises which he entered and in which he lit a fire was separate from the residential part of the premises and there was no serious danger to life. He broke and entered several parts of these premises and ransacked them, in the process lighting a fire. On the same night he broke and entered St. Columban School, ransacked the premises and lit two paper fires. He stole two video cassette recorders, a stereo compact disc player and a radio cassette player from those premises.

On 15 May 1995 the respondent broke and entered shop premises after apparently attempting to break and enter some other premises and stole some coins from it.

At the time of committing all or at least most of these offences the respondent was affected by heroin and his purpose in being in those premises was to obtain money, or goods which he could sell for money, to satisfy his heroin habit. He said that the fires were lit for the purpose of enabling him to see.

We have already mentioned that all of these offences committed on and after 11 May were committed whilst the respondent was on bail in respect of the offences committed in March and April and that all of the offences were committed whilst the respondent was on parole in respect of his earlier manslaughter offence. He had been released on parole only on 24 February 1995. He was arrested again on 15 May 1995 and remained in custody thereafter. It was in respect of this custody that the learned sentencing Judge rightly declared 315 days to be imprisonment served under the sentences which she imposed.

It is necessary now to look at the total effect of the sentences imposed in this case, bearing in mind that they were not made cumulative upon the sentence, part of which the respondent is still required to serve for the manslaughter offence. In respect of that offence, the learned sentencing Judge was told that the respondent's full time discharge date was 26 March 2003. This was a little over a year longer than his original full time discharge date because of offences committed whilst in prison. Notwithstanding this extension of his sentence, the learned sentencing Judge was told that, under that sentence, he was eligible for parole on 26 February 1995 (and although there is some inconsistency on this subject in the records) according to submissions made to this Court the respondent was released on parole on 24 February 1995.

Under the sentences now imposed his full time discharge date will be seven years less 315 days from 26 March this year. That will be 315 days before his full time discharge date in respect of his 1988 sentence. In other words, by imposing a seven year sentence commencing on 26 March this year and making the declaration which she did the learned sentencing Judge has imposed no effective additional term of imprisonment for the multiple offences the subject of this appeal.

Prior to the imposition of these sentences the respondent's eligibility date for parole was either 26 February 1995, the date on which he in fact obtained parole or, as seems more likely, about 9 September 1995, the halfway mark of the extended sentence: Corrective Services Act 1988, s.166(1)(b). And if the learned sentencing Judge, by imposing the sentences which she did, had not made a recommendation for eligibility for parole, the respondent would have remained eligible on the same date. By recommending eligibility on 26 March 1998 the learned sentencing Judge postponed the eligibility date beyond the halfway mark of the total sentence.

A term of seven years imprisonment would not have been inadequate for the totality of the offences the subject of the sentences under appeal. And, as we understand his submission, the Attorney does not appeal on that basis. He submits that the consequence of making that sentence concurrent with the sentence which the respondent is already serving together with the recommendation for parole makes the sentence manifestly inadequate.

There were a number of factors in this case, personal to the respondent, which went in mitigation of the sentence which might otherwise have been imposed. The respondent pleaded guilty at the committal hearing to 15 of the 19 counts of which he was ultimately convicted and pleaded guilty to the others in sufficient time to avoid substantial costs being incurred. He also co-operated with the police. Like so many such offenders the respondent came from a broken home and had had a shocking home life. He was addicted to heroin and the offences can be explained, though not excused, by his heroin addiction, his motivation in each case being to obtain money for heroin. The learned sentencing Judge also had considerable regard to a pre- sentence report which indicated a number of worthwhile characteristics of the respondent and some possibility of his rehabilitation if only he could overcome his heroin addiction.

On the other hand the respondent has a long criminal record commencing in 1980 mostly involving offences of dishonesty but including, as we have already mentioned, the offence of manslaughter for which he had been sentenced to 14 years imprisonment. Moreover it must be recalled that all of these offences were committed shortly after the respondent was released on parole in respect of that offence and most of them whilst he was on bail in respect of the offences committed in March and April.

Although when one has regard to his criminal record and his heroin addiction one would have to say that his prospects of rehabilitation are not high, he is still only young, only 27 years of age and the pre-sentence report gives some cause for optimism.

This was plainly a case in which a cumulative sentence should have been imposed to ensure that the respondent received, and is seen to have received, an additional sentence for these offences. Nor, in our view, should that cumulative sentence be any less than seven years in order to reflect what is appropriate for the totality of the respondent's 1988 and 1995 offences.

We would impose, for these offences, an effective term of imprisonment of seven years to be served cumulatively upon the sentence which the respondent is now serving. We would not disturb the learned sentencing Judge's declaration that 315 days which the respondent has served in custody be imprisonment already served under the present sentences. This would have the effect of adding to the respondent's full time release date a term of approximately 6 years 1½ months.

The mid point of the total term of imprisonment which, if such a sentence were imposed cumulatively, the respondent would now be required to serve, would be a little over ten years from 26 February 1988; that is about March 1998. That would be the approximate date on which the respondent would have been eligible for parole, in the absence of any recommendation, if the present sentences had been made cumulative upon the 1988 sentence: Corrective Services Act s.166(1)(b); definition of "term of imprisonment" in s.10. Having regard to that fact and to the factors to which we have already referred to in mitigation of the sentence which might otherwise be imposed we would not interfere with the learned sentencing Judge's recommendation that the respondent be eligible for parole on 26 March 1998.

We would therefore allow the appeal only to the extent of making the sentences which her Honour imposed cumulative upon the sentences which had, at the date of her Honour's sentences, already been imposed upon the respondent.