R v Williams

[1995] QCA 522

IN THE COURT OF APPEAL	[1995] QCA 522
SUPREME COURT OF QUEENSLAND

C.A. No. 362 of 1995.

Brisbane

[R v. Williams]

T H E Q U E E N

v.

GARRY JOHN WILLIAMS

(Applicant)

_____________________________________________________________________

Macrossan C.J.
Davies J.A.

Pincus J.A.

_____________________________________________________________________

Judgment delivered 28/11/1995

Judgment of the Court
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1.         APPLICATION GRANTED.

2.         APPEAL ALLOWED.

3.         ALL THE SENTENCES IMPOSED ON 8 AUGUST 1995 ARE TO BE SERVED CONCURRENTLY.

4.         THE SENTENCES IN RESPECT OF ARMED ROBBERY AND ARMED ROBBERY IN COMPANY COMMITTED IN DECEMBER 1994 ARE INCREASED FROM 12 YEARS TO 15 YEARS.

5.         THE APPLICANT IS TO BE ELIGIBLE FOR RELEASE ON PAROLE ON 8 FEBRUARY 2002.

6.         OTHERWISE, THE SENTENCES IMPOSED ON 8 AUGUST 1995 ARE CONFIRMED.

___________________________________________________________________

CATCHWORDS:	CRIMINAL LAW - SENTENCE - cumulative sentences imposed at trial - totality principle - relevance of time between sets of offences, whether total term, if sentences made cumulative, is excessive. Mill (1988) 166 C.L.R. 59 Clements (1993) 68 A.Crim.R.167.
Counsel:	Mr B Butler for the applicant. Mr S Hamlyn-Harris for the respondent.
Solicitors:	Queensland Director of Public Prosecutions for the applicant. Legal Aid Office for the respondent.
Hearing date:	21 November 1995.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28/11/1995

The applicant was recently sentenced in the District Court to a total of 18 years imprisonment for numerous offences committed in 1992 and 1994, the most serious of which were three armed robberies. Prior to commission of the offences for which he was thus sentenced the applicant had a bad criminal record. But Mr Hamlyn-Harris contends on his behalf that the total of 18 years imprisonment is excessive; it is certainly a long sentence.

The applicant is now 38; he was 35 and 37 years of age when the offences in question were committed. Some details of them should be given, but it is unnecessary to describe them all comprehensively. The earlier group consisted of house-breaking, breaking, entering and stealing, stealing and burglary committed at a house in Bundaberg. The appellant broke into the house while the owner was away; the owner’s brother then visited the house and found, in the language of the prosecutor below, "that the kitchen window had been jemmied open, the house had been completely ransacked, property had been strewn everywhere and some $1,200 worth of electrical equipment and jewellery and so on had been taken". A shed had also been broken into and property taken from there. On the following night an offence of burglary was committed at the same house, but on that occasion the police were called; unfortunately a search of the appellant’s residence did not then bring the stolen property to light and he was let go. In fact the property which had been stolen was at premises of an accomplice of the appellant and was located much later.

Four other 1992 offences consisted of house-breaking and an associated stealing, stealing from a dingy and an offence of false pretences consisting in selling stolen property. In respect of the 1992 offences a series of concurrent terms of imprisonment was ordered; each was of either two years or three years duration except for the burglary which has been mentioned; that attracted a six year sentence.

All the other offences were, as I have mentioned, committed in 1994 from April to December; 29 of them were included in an agreed schedule tendered under s. 189 of the Code, and another 23 by way of indictment; the applicant pleaded guilty. As to the latter, it is not absolutely clear how many of the indictments were presented ex officio. Three of the 1994 offences were armed robberies. On 13 December the applicant and a co-accused went to a convenience store at New Farm. The co-accused, one Bennett, robbed the store of $66 using a steak knife for the purpose of threat; the appellant drove the vehicle used in this offence. The second armed robbery was committed at a Cut Price store at Hamilton; three offenders were involved, the applicant, Bennett and one Moore. What is described as a reconnaissance was done by Moore and Bennett and a little later the woman who owned the store left it and got into a car, carrying a bag which contained $25 and some business documents. Moore pulled open the door of the proprietor’s car, pushed a double-barrelled shotgun against the side of her head and demanded the bag; it was handed over and the three offenders made their escape. On the same day, they robbed another Cut Price store, at Bulimba. The applicant and Bennett came in after the store closed wearing balaclavas, Bennett being armed with a sawn-off shotgun. The appellant and Bennett demanded to know where the money was and the manager took them to the safe and began to open it. Bennett and the applicant kept demanding that he should hurry; Bennett fired a shot from the gun and, according to the Crown account below, the applicant told the manager there was only 10 seconds in which to open the safe and started a count down; Bennett fired another shot and, again according to the Crown version, both men threatened to kill the manager. The safe was opened and a sum of over $9,000 taken, which included money in the manager’s wallet. At the sentencing hearing some of the details of the allegations relating to the second and third robberies were disputed on behalf of the applicant; to put it broadly an attempt was made to diminish the applicant’s connection with the use and threatened use of weaponry. The judge explained that he proposed to take, as to the applicant and Bennett, "an overall view of the criminality which you were guilty of", not thinking it necessary to come to a precise conclusion on the disputed points. In this Court no complaint was made about the course taken. For each of the robberies, the applicant was sentenced to 12 years imprisonment, cumulative upon the 6 years for the 1992 burglary.

The other 1994 offences included numerous house break-ins and the like; in all, about $100,000 worth of money and other property was taken and not recovered. There were 60 offences for which the applicant was sentenced, which included the three armed robberies which have been mentioned (two in company), two burglaries, 25 house breakings, 24 offences of stealing, two offences of unlawful use of a motor vehicle, one of attempted house breaking, one of breaking, entering and stealing, and two of false pretences.

The applicant has a substantial criminal record, as has been mentioned. He was first sent to prison in 1974 when he was ordered to serve 2 months for stealing. In 1975 there were a number of offences of house breaking and of breaking, entering and stealing; 3 years probation was ordered, but on appeal the sentence was increased to 3 years imprisonment. In 1978 he was sentenced to 2 months for breaking and entering with intent, and later in that year to 10 years for rape and 10 years concurrent for carnal knowledge against the order of nature. In 1987 he received 6 years imprisonment for an armed robbery, committed in 1986, and a further 6 months, in the same year, for a number of charges of false pretences, stealing and forgery. In 1990 he was sentenced to 4 months imprisonment for being unlawfully at large, having been granted leave of absence.

The 1987 and 1990 sentences have a direct bearing upon those with which the Court is presently concerned. It is common ground that those sentences do not expire until 4 May 1996, principally because of periods when the applicant was at large. As has been mentioned, he was sentenced to a total of 18 years imprisonment, but that sentence ran from 8 August 1995, the date of sentencing; so that the 18 year sentence was partially concurrent with what was left of the 1987 and 1990 sentences, the "overlap" being 270 days - 9 months. One may regard the effective sentence, then, as being a total of 17 years and 3 months cumulative upon the sentences already being served. Even when full regard is had to the reprehensible conduct of the applicant, and his criminal record, that seems simply too long. No-one was physically hurt by the applicant’s activities, and his pleas of guilty, as well as his co-operation with regard to the s. 189 schedule, must be considered.

The position with respect to recommendation for parole is a little obscure, in that the sentencing judge mentioned two non-parole periods of 4½ years and 2½ years in respect of the longest head sentences (12 years and 6 years respectively); that adds up to 7 years, but his Honour concluded this subject by saying that he fixed, in respect of the 12 year sentences, a non-parole period of 7½ years. The matter was argued before us on the basis that the true intention was to fix a non-parole period of 7½ years in relation to the total sentence of 18 years.

While not disputing that these 60 offences necessitated, particularly in view of the appellant’s bad record, the fixation of a long period of imprisonment, Mr Hamlyn-Harris for the applicant submitted that the judge had erred in fixing a head sentence of 6 years in respect of the 1992 offences and one of 12 years in respect of the 1994 offences, and simply adding the two together. It was contended that, despite the gap in time between the two batches of offences, the "totality principle" should have been applied and attention been specifically directed to the question whether the whole sentence of 18 years was excessive. The submission is supported by the decision in Clements (1993) 68 A.Crim.R. 167 at 171, 172 where the period which elapsed between the two groups of offences was longer that here; it was 4 years. After reference to Mill (1988) 166 C.L.R. 59, the principal set of reasons (that of the Chief Justice and de Jersey J) includes the following comment:

"A term which, because it is ordered to be served cumulatively, does not begin to run until some date well into the future, can have an extremely onerous or perhaps unduly onerous effect. The impact may be overwhelming in some cases.

To guard against the possibility of undue impact the total effect in the circumstances should not be lost sight of."

A little later the judgment goes on :

"It also appears to be accepted that concurrent terms will usually be called for in the case of a series of related offences committed over a short time span. In other situations the court may be conscious of a clear and compelling need to visit an offence with a separate additional penalty. However, in many instances the judicial discretion may be at large and less restricted by particular principle. Still, a need for caution will always attend the matter to which attention was drawn in Campbell and Brennan ([1981] Qd.R. 516 at 524) viz that an unjust excessiveness may be produced if care is not taken to assess the overall effect of the imposition of cumulative penalties." (172-173)

The principal authority which has led to a focusing of attention upon the reasonableness, or otherwise, of the total effect of cumulative sentences is Mill. That concerned sentences imposed in different States, but the principle it establishes has application beyond cases of that sort. Whenever cumulative sentences are being imposed, even in relation to offences committed years apart, it is necessary to consider whether the total term which the prisoner may serve under the sentences is excessive. The potentially wide scope of application of the totality principle is illustrated by the recent Queensland decisions in Coss (Court of Appeal, C.A. No. 262/94, 15 March 1995, unreported) and Bartz (Court of Appeal, C.A. No. 501/94, 21 March 1995, unreported) as well as by Mickelberg (1984) 13 A.Crim.R. 365 at 371, 372, and Larsen (1989) 44 A.Crim.R. 121 at 126.

We were referred to cases in which consideration has been given to the proper sentence to be imposed in matters of this kind, involving numerous breaking and entering offences and the like; it is difficult to find one which is precisely comparable. But it appears that counsel for the respondent was not prepared to dispute the proposition, with which we agree, that there is an appearance of manifest excessiveness about the total sentence of 18 years, even taking into account that 9 months of it is, in effect, concurrent with a subsisting sentence. The whole term would not expire until the month of August in the year 2013, at which time the applicant would be approaching his 57th birthday.

Mr Hamlyn-Harris, for the applicant, suggested that the total head sentence should be reduced from 18 years to 15 years and that appears to be a proper course. Since it is not possible to make the sentences partly cumulative and partly concurrent, the process of reduction of the total to the desired figure is necessarily somewhat arbitrary. One possibility is to cut the 6 year sentence for the burglary (which no doubt took into account the other 1992 offences) to 3 years, a sentence which would ordinarily be regarded as substantially too short. Another possibility is to make all the sentences concurrent and increase the robbery sentences to 15 years. On the whole, the latter appears to be the better course; it will, as has been mentioned, produce as a practical matter an extra head sentence 9 months less than that - i.e. one of 14 years and 3 months.

There is left to be decided the date at which the applicant should be eligible for consideration for parole. In view of his performance when serving previous sentences, there is by no means any certainty that the applicant would be paroled at any date we fix. Nevertheless, it seems desirable that there be a substantial minimum period served before consideration for parole, in view of the multiplicity of offences, the fact that the armed robberies are included amongst them, and the applicant’s record. It will be recommended that the applicant be eligible for release on parole after 6½ years from the date of sentencing.

That is, the orders are:

1.         Application granted.

2.         Appeal allowed.

3.         All the sentences imposed on 8 August 1995 are to be served concurrently.

4.         The sentences in respect of armed robbery and armed robbery in company committed in December 1994 are increased from 12 years to 15 years.

5.         The applicant is to be eligible for release on parole on 8 February 2002.

6.         Otherwise, the sentences imposed on 8 August 1995 are confirmed.