R v Towle

[2003] QCA 140

SUPREME COURT OF QUEENSLAND

CITATION:	R v Towle [2003] QCA 140
PARTIES:	R v TOWLE, Bradley (applicant)
FILE NO/S:	CA No 26 of 2003 DC No 493 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED EX	25 March 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2003
JUDGES:	de Jersey CJ, Williams JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – RECOGNIZANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS – PROBATION ORDERS AND SUSPENSION OF SENTENCE – where applicant pleaded guilty to one count of armed robbery in company – where applicant sentenced to five years imprisonment with a recommendation for post-prison community based release after serving two years – where applicant submitted the learned sentencing judge should have suspended his sentence after two years rather than recommending his consideration for post-prison community based release after two years – where the applicant’s family lives in New South Wales – where the applicant has matters pending in New South Wales – where the applicant has taken steps to rehabilitate himself while in prison
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

ATKINSON J: The applicant Bradley Towle was sentenced on applicant was sentenced to two years imprisonment on count 1, five years imprisonment with a recommendation for post-prison community based release after serving two years on count 2 and one year's imprisonment on count 4. 288 days spent in pre- sentence custody were declared as time already served under the sentence.

10 January 2003 after pleading guilty to one count of bringing
stolen goods into Queensland (count 1), one count of armed
robbery in company (count 2), and one count of unlawful use of
a motor vehicle with a circumstance of aggravation (count 4).

The applicant, who appeared for himself on his appeal, argued that the learned sentencing Judge should have ordered that his sentence of five years imprisonment be suspended after serving two years rather than making a recommendation that he be considered eligible for post-prison community based release after serving two years.

The basis of this application is that he submits he is unlikely to be granted post-prison community based release because his family is from New South Wales and he has other matters pending in New South Wales. That was argued on his behalf by his counsel at his sentence hearing. However, the learned sentencing judge took the view, which was open to him, that nevertheless he should make a recommendation for eligibility for post-prison community based release rather than suspending the sentence, having regard to the particular importance of rehabilitation, in light of the applicant's youth and his ongoing need for supervision. His Honour was entitled to take that view, particularly given the long criminal history of the applicant which included a number of previous convictions for robbery, including convictions for robbery in company whilst armed.

The applicant told the court in his oral submissions today about all the constructive steps he has taken to undertake rehabilitation whilst in custody. No doubt these will assist in his application for post-prison community based release, and there seems no reason to doubt that that ought to be granted after two years in accordance with the judge's recommendation.

In order for the applicant to succeed on appeal against sentence, he must show that the sentence imposed was outside the proper exercise of discretion by the sentencing judge. He has not been able to do this and the application for leave to appeal against his sentence should therefore be refused.

THE CHIEF JUSTICE: I agree.

WILLIAMS JA: The material placed before this Court indicates that for a variety of reasons the applicant ran away from home when aged about 12 and thereafter lived on the streets. Understandably, given that lifestyle, he committed numerous offences and became drug addicted. Much of his life since then has been spent in juvenile institutions and, consequent upon the sentence in question here, he is serving his first time in an adult prison.

Material placed before the Court by the applicant indicates that he has, for example, resumed his education; he has taken steps to improve his reading and writing and has otherwise taken steps to put himself into a position where he would be able to return to the community. He has resumed contact with his family who live in New South Wales, and undoubtedly, on his release from custody, the better course is for him to return to that family environment in New South Wales.

In the circumstances it seems to me that there is every reason to believe, particularly given his age and the steps that he has taken towards improving his skills, that he would be granted post-prison community based release at the time indicated in the sentence under question. On that basis it seems to me that it is appropriate to make the order proposed by Justice Atkinson and I agree with her reasons and with the order proposed.

THE CHIEF JUSTICE: The application is refused, Mr Towle, but do not be unduly disappointed by that. Do not let it get you down, you continue to try and develop and improve yourself and

your prospects of being released next January will then be as

good as they can be.

PRISONER: Yes.
THE CHIEF JUSTICE: We wish you well.

-----