R v Weeding

[2007] QCA 311

SUPREME COURT OF QUEENSLAND

CITATION:

R v Weeding [2007] QCA 311

PARTIES:

R
v
WEEDING, Raymond John
(applicant)

FILE NO/S:

CA No 82 of 2007
DC No 67 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

28 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2007

JUDGES:

Keane JA, Cullinane and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION  – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PROPERTY OFFENCES – where applicant pleaded guilty to 10 property offences and two assaults – where applicant sentenced to concurrent terms of imprisonment of four and a half years for the property offences and 18 months for the assaults with parole eligibility after
13 months – whether sentence manifestly excessive – whether applicant should have been given parole release date

R v Gates [2002] QCA 320; CA No 99 of 2002, 23 August 2002, cited

COUNSEL:

The applicant appeared on his own behalf
M R Byrne for the respondent

SOLICITORS:

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

1. KEANE JA:  On 15 March 2007, the applicant was convicted on his plea of guilty of six counts of burglary and stealing, three counts of burglary by breaking, one count of burglary, and two counts of common assault.  The offences were committed between April and October 2006 but most of them were committed after his release from prison in September 2006. 

1. The applicant was sentenced to four and a half years imprisonment in respect of each of the property offences and to a concurrent term of 18 months in respect of the assaults.  The learned sentencing judge fixed a parole eligibility date of 7 April 2008.

1. The applicant seeks leave to appeal against his sentence on the ground that it was manifestly excessive.  In particular, the applicant contends that he should have been given a parole release date rather than a parole eligibility date on the footing that he would have better prospects of rehabilitation in the community and he apprehends that the authorities will not give proper consideration to the merits of his application for parole when it is made.

1. There is no merit in the applicant's contention.  Having regard to the seriousness of his offending and his disturbing criminal history, the sentence which was imposed was distinctly moderate, and it was entirely appropriate for the learned primary judge to fashion a sentence which obliged the applicant to demonstrate to the authorities that he should be given parole when he becomes eligible.

1. The offences in question were serious.  They involved entering 10 houses, a number of which were occupied by elderly persons at the time of the offence.  On two occasions, the applicant assaulted the occupants, although he did not cause injury.

1. The applicant was 33 years old at the time of the offences.  He has a lengthy history of similar offences as well as armed robbery in company.  He has served lengthy periods of imprisonment between October 1992 and September 2006.

1. It is a serious aggravating factor that 10 of the offences for which he was sentenced on 15 March 2007 were committed immediately after his release from prison.

1. A head sentence of imprisonment for seven years was within a range said by this Court in R v Gates[1] not to be manifestly excessive for serial burglary offences by an offender with a bad criminal history after a plea of guilty to an ex officio indictment.  It may be acknowledged that the level of offending in R v Gates was worse than in the present case, but R v Gates was a case where there was some evidence of attempts by the offender to rehabilitate himself.  In this case, even though there was a plea of guilty to an ex officio indictment, and a degree of cooperation with the authorities, there was no real remorse or any suggestion of an attempt at rehabilitation. 

   [1][2002] QCA 320. See also R v Bonner [2000] QCA 37.

1. The learned sentencing judge clearly gave the applicant a substantial discount for his pleas of guilty, both in terms of the head sentence and the recommendation for consideration for early parole.  The moderation of the sentence also included a reduction of the head sentence and parole eligibility date to reflect the fact that the applicant had been in custody since 7 October 2006.  This period of custody could not be declared to be time served for these offences because the applicant was being held in respect of other offences as well.

1. The applicant's principal complaint is that he should have been given a fixed parole release date. The respondent submits that it was not open to the learned sentencing judge to fix a parole release date for the applicant because the period of imprisonment was not less than three years. That being so, the sentencing judge's power to fix a parole release date under s 160B of the Penalties and Sentences Act 1992 (Qld) was not enlivened. On any view, the applicant could not have expected a sentence of less than three years imprisonment. But even if this were not the case, there was no compelling reason why the learned sentencing judge should have given the applicant the additional benefit of a fixed early release date.

1. The applicant says that, at the time of the offences, he had a drug addiction and lost his mother in July 2006.  He also says that he had no support when released from prison.  But these subjective considerations, which were not mentioned by the applicant to the learned sentencing judge, are overwhelmed by the need for general and personal deterrence and protection of the community, especially having regard to the applicant's extensive history of similar offences.  These considerations were, rightly, given weight by the learned sentencing judge in reaching the appropriate sentence. 

1. In any event, the points which the applicant makes only serve to confirm the applicant's recidivist tendencies and, consequently, the desirability of a sentence which obliges the applicant to demonstrate to the authorities a serious commitment to rehabilitation while in prison.  The sentence imposed recognises that the applicant, now a mature man with a lengthy and disturbing criminal record, should understand that early release depends upon his demonstrating that he does not pose an unacceptable risk to the community.

1. The applicant's apprehension that his application for parole will not be dealt with on its merits when he becomes eligible to apply for parole is not a basis on which the sentence which has been imposed upon him can be called into question.  To the extent that the applicant's concern is genuine, and not merely a reflection of his lack of insight into the legitimate concern of the community that his anti-social behaviour must change, that is a bridge which the applicant must cross when he comes to it.  There can, in my opinion, be no legitimate criticism of a sentence which encourages the applicant to be assiduous in demonstrating to the authorities that he deserves to be given the opportunity to turn his back on the life of crime to which he has previously committed himself.

Conclusion and order

1. The sentence which was imposed was not excessive, much less manifestly so.

1. The application for leave to appeal should be dismissed.

1. CULLINANE J:  I agree with the reasons of Keane JA in this matter and the orders he proposes.

1. LYONS J:  I agree with the reasons of Keane JA.  The sentence imposed in relation to the property offences of four and a half years and the 18 months concurrent sentence imposed with respect to the assaults was clearly appropriate in the circumstances of the offences and the defendant’s criminal history.  The sentence imposed was not manifestly excessive.

1. Whilst the applicant argues that the sentence was manifestly excessive he does not in fact advance any arguments against the period of imprisonment imposed other than to submit that the learned sentencing judge should have fixed a parole release date rather than a parole eligibility date.  The applicant also submits that the length of time required to be served before the parole date is activated should be reduced to 13 months.  It would appear that the actual sentence imposed is within the range anticipated by the applicant and is apparently accepted by him.

1. Factors in the applicant’s favour which the learned sentencing judge took into account included his pleas of guilty and his co-operation with police.  It is clear however that there were a number of aggravating factors which included the number of offences and the fact that the offences were planned systematic offences.  The applicant’s extensive criminal history indicated that he had shown persistence in this type of offending which evidenced a disregard for the property of others.  The applicant had also only recently been released from custody when he had commenced the first of the offences.  The offences were serious because the applicant entered dwellings with the express intention of stealing money often when the occupants were home.

1. The applicant’s criminal history showed that he had been given the opportunity of reform through community based orders but this had not occurred.  Whilst an issue arose in respect of a period of approximately five and one third months which the applicant had spent in pre-sentence custody which could not be declared, the learned sentencing judge took this time into account by sentencing him to four and a half years imprisonment and ordering a parole eligibility date of 7 April 2008 i.e. 18 months after he was taken into custody on 7 October 2006. 

1. It is also clear that pursuant to the provisions of the Penalties and Sentences Act, it was not open to the judge to fix a parole release date as argued by the applicant given the period of imprisonment imposed was more than three years.

1. I agree with the orders proposed by Keane JA.