The Queen v Stephen Bruce Porter

[2000] QCA 331

[2000] QCA 331

COURT OF APPEAL

PINCUS JA
THOMAS JA
AMBROSE J

CA No 107 of 2000

THE QUEEN

v.

STEPHEN BRUCE PORTER  (Applicant)

BRISBANE

..DATE 14/08/2000

JUDGMENT

THOMAS JA:  The applicant seeks leave to appeal against sentences imposed for nine offences committed by him over a six month period between August 1999 and February 2000.

The offences really consist of two events or series of events about six months apart.  The first four offences receiving, entering a dwelling and stealing, entering another dwelling with intent and unlawfully using a motor vehicle resulted in sentences of two years' imprisonment on the entering charges and concurrent shorter sentences on the others.

The other offences assault, unlawful damage, obstructing police, disorderly conduct and serious assault involved angry uncontrolled conduct by the applicant in Brunswick Street when he started to attempt to damage a shop window with his crutches and showed on-going aggression towards police when they tried to restrain him.  For these offences he was sentenced to an effective additional cumulative sentence of three months.  Thus the total effect of the sentences was two years and three months.

The applicant is described as an Aboriginal man aged 34 at the time of the first offence.  Unfortunately, he has a very extensive criminal history dating from 1981.  There are numerous previous convictions for house breaking and breaking and entering.  He was sentenced to eight and a half years for armed robbery offences, one of them in company some time ago.  At the time of the present offences the applicant apparently had recently been released from a recent term of imprisonment.  Of course, the latter offences were committed whilst he was on bail for the first four. 

The circumstances reveal that the applicant received car keys knowing them to have been stolen and used them to obtain the motor vehicle which is the subject of the unlawful use charge.  He collected his nephew, a 19-year-old youth, and together they entered a dwelling house and stole a bracelet and a number of 50 cent pieces.  They then went to another dwelling house and were inside it when apprehended by police who had been alerted by neighbours.  They attempted to escape.  During the applicant's attempt he broke his leg. 

The later incident 1 February 2000 reveals the applicant in Brunswick Street on crutches.  For no apparent reason he struck a glass window at the police mall post on three occasions.  The window did not break.  The police asked him what was wrong.  He told them that his wallet had been stolen and that he would take them on.  They endeavoured to placate him but he threatened to hit them with the crutch.  A crowd gathered, a confrontation ensued for some time.
Eventually, he was distracted and knocked to the ground and a struggle ensued during which a police officer suffered minor injuries.

In his favour the applicant made an early indication of willingness to plead guilty to all charges.  He also, in a sense, has indirectly been punished to some extent by suffering a broken leg, and undoubtedly imprisonment will be more than usually burdensome to him because of that.

The applicant appeared in person in this Court and his main submissions were that he felt he was not represented properly.  In particular, he complained about the fact that the Judge apparently acted on the footing that he had been on parole at the time when the first offences were committed.  That appears not to have been the case in that he says he had been released after serving full term, presumably having been granted appropriate remissions.  It seems, however, that he must have been only shortly released from prison before he committed these offences of dishonesty which comprised the first four offences.

The erroneous impression of his Honour as to the applicant being on parole could not have had any serous impact on the overall sentence although the error is acknowledged.  He went on to say that the he was sentenced on the basis of being the principal offender or the instigator and he implies that his counsel should have contradicted that impression.  He now submits that it was a joint venture with his nephew. 

When one has regard to the respective ages of the applicant and of his nephew and of the serious criminal history of the applicant compared with the relatively minor criminal history of his nephew the fact that his nephew had managed to survive for 12 months since his previous conviction without re-offending, and the fact that it was the applicant who obtained the keys, that particular suggestion would not appear to have been a particularly promising point to pursue.  I do not think that any injustice has resulted or any inadequacy of representation has been demonstrated. 

The circumstances of the individual offences are not particularly serious, at least, in respect of the value of property involved.  There is also something irrational and perhaps pathetic in relation to the second series of offences.  Appropriate sentences should therefore not be of the higher end of the scale.  However, the sentences in question are not heavy especially for a repeat offender with a serious criminal history.  They are little different from what the applicant's counsel conceded below would be appropriate sentences.  The submission there from experienced counsel was that a sentence of up to three years with a recommendation for parole after 12 months or a sentence of two years with no recommendation was appropriate.

I do not agree with the submission of Mr Meredith for the Crown that the present sentences were extremely lenient, but do consider that they fall within the available range.  It is relevant to note and I think that the evidence justifies the inference that the applicant was the initiator with the breaking and entering offences and that he helped to lead his 19-year-old nephew astray in the process.

The imposition of a short cumulative term for the summary offences was acceptable especially in relation to the more serious part of it including assault on a police officer.  In my view then the application must be refused.

PINCUS JA:  It is regrettable that there was, it is said, a misapprehension on the part of the sentencing Judge as to the question of whether the applicant was on parole at the time of commission of the relevant offences.  It is just as regrettable that the applicant, who presents as a reasonable and honest person, has not, in fact, managed to make a life for himself outside prison.

The pathetic character (referred to by Justice Thomas) of the summary offences exemplifies the applicant's difficulties in coping with ordinary society and I express the hope that he manages to see this, in due course.

As to the matter before us, the applicant feels he has been unjustly treated; but my opinion is to the contrary and I agree with the reasons given by Justice Thomas and the order he proposes.

AMBROSE J:  I agree and have nothing useful to add.

PINCUS JA:  The application will be refused.

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