SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v Strickland [2003] QCA 184 PARTIES: R v STRICKLAND, Wayne Robert (applicant) FILE NOS: CA No 25 of 2003 DC No 279 of 2002 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Sentence Application District Court at Dalby DELIVERED ON: 9 May 2003 DELIVERED AT: Brisbane HEARING DATE: 9 April 2003 JUDGES: ORDER: CATCHWORDS: COUNSEL: SOLICITORS: Williams and Jerrard JJA and Muir J Separate reasons for judgment of each member of the Court, Williams JA and Muir J concurring as to the order made, Jerrard JA dissenting Application for leave to appeal against sentence refused CRIMINAL LAW JURISDICTION, PRACTICE AND PROCEDURE JUDGMENT AND PUNISHMENT SENTENCE FACTORS TO BE TAKEN INTO ACCOUNT MISCELLANEOUS MATTERS OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION where applicant convicted on own plea of one count of entering premises with intent to commit an indictable offence where sentenced to 12 months imprisonment to be served concurrently with the balance of a suspended sentence whether the sentence imposed was manifestly excessive Penalties & Sentences Act 1992 (Qld), s 147 The applicant appeared on his own behalf B G Campbell for the respondent The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

2 2 [1] WILLIAMS JA: I have read the reasons for judgment of Muir J, and agree with all that he has said therein. The application for leave to appeal against sentence should be refused. [2] JERRARD JA: I have the advantage of reading the reasons for judgment of Williams JA and Muir J. While respecting the considerable experience that those judges, and particularly Williams JA, bring to the issues for consideration in this matter, I would have allowed the application for leave to appeal and reduced the overall sentence. My reasons are these. [3] Some of Mr Strickland s offending behaviour appears, at least, related to the generalised epilepsy of Grand Mal type from which he was described as suffering in the report by Dr Ohlich dated 21 January 1999 (AR 56-59). That report describes how epilepsy may be associated with personality disorders, abnormal behaviour, anti-social behaviour, aggression, and poor emotional control. That does seem to describe some of the conduct which has resulted in some of Mr Strickland s convictions. The report of Dr White dated 18 January 1998 (AR 51-55) describes Mr Strickland as functionally illiterate, and suffering from Hepatitis C and alcohol dependence. At the hearing of the instant application it appeared that he also makes regular use of the drug cannabis. [4] Since those two medical reports were written, Mr Strickland suffered significant physical injury when attacked and stabbed in April He was described by his counsel during the sentencing process as suffering as a result from constant pain and constant diarrhoea. It appears that he strongly resents that no person has been charged with an offence for having caused him that injury. In addition to those medical problems, it appears unchallenged that he experienced a childhood in which his father, who is currently serving a term of imprisonment in Western Australia for sex offences, was violent to Mr Strickland, to his mother, and to his siblings. [5] None of this entitles Mr Strickland to commit offences, or escape the consequences for doing so when serving a period of a suspended prison sentence. However, he clearly does have significant health and social disabilities which challenge his capacity to live a law abiding and peaceful life. [6] The offences for which the partly suspended sentence was ordered in February 1999 included the commission of acts of violence. Mr Strickland had committed a home invasion of the Dalby residence of a person living near Mr Strickland s mother, punching the male occupant who was aged between 50 and 65 years, and also assaulting the female occupant who was aged 66. That male complainant suffered injuries to his left eye, and pain to the lower lumbar region. The female complainant had a large lump on her forehead, and tenderness around the back of her head and neck. Mr Strickland had surrendered himself to the Police following that incident, refused to give any record of interview, been released on bail, and two days later committed offences of wilful damage and threatening violence at the Dalby hospital to which he had been taken by his sister. He had damaged a door and threatened Police. Dr White s report dated January 1998 (obviously written in January 1999) quotes Mr Strickland as describing those offences, committed on 6 and 8 September 1998 respectively, as part of a drunken rampage. [7] Behaviour of that kind does not seem to be involved in any of Mr Strickland s behaviour which has been in breach of that suspended imprisonment.

3 3 On 25 May 2001, he was found in possession of 3.2 grams of cannabis at his residence in Dalby, and convicted and fined for that offence on 16 July On 15 August 2001, he actually committed the offence of entering the premises with intent, the sentence for which forms part of the basis of this application. That sentence was imposed on 21 January 2003 in the Dalby District Court. Some nine days after committing that entering offence, (for which he was eventually apprehended some months later on 17 January 2002), Mr Strickland attended the Dalby Police Station, and while there became disorderly, abusive and threatening. His conduct included the statement: I m going to walk into this place with a fucking gun. That resulted in his being convicted and fined on 17 September 2001 in the Dalby Magistrates Court. [8] Notwithstanding those threats and his disorderly behaviour, he did not in fact use any violence; nor, regrettably, did he learn from his court appearances. Instead, when intercepted at the Cairns Airport on 17 January 2002 in relation to the entering charge, he was found to be in possession of six grams of cannabis. That led to his being convicted and fined in the Cairns Magistrates Court for that offence on 5 February On 18 January 2002, and apparently when in custody, he again became disorderly with the Police officers, called them nothing but a pack of dogs, and spat in the direction of one of them. That conduct led to a conviction for behaving in a disorderly manner, incurred on 18 October [9] Mr Strickland has therefore persisted in obnoxious and disorderly behaviour with persons in authority and with the usage of cannabis. That obnoxious behaviour when in custody had also been exhibited in September 1998, when he had used obscene language, obstructed Police, and assaulted a Police officer, in behaviour committed at the Dalby Watch house and Courthouse. He was actually sentenced for those matters as well in the District Court on 11 February [10] The learned sentencing judge observed accurately enough on 21 January 2003 that Everyone runs out of chances. However, in all the circumstances of this case, I consider that the offence of entering with intent committed in August 2001, and in which no property was stolen, would be adequately punished by a sentence of imprisonment for six months. I would have thought it appropriate in the circumstances to activate 12 months of the previously suspended sentence, resulting in toto in a sentence of 18 months imprisonment. I accept that the entering with intent offence is not trivial and, under the circumstances, nor were the offences of disorderly behaviour with Police officers, twice committed by Mr Strickland. However, when regard is had to the provision of s 147(3)(a)(v) of the Penalties and Sentences Act 1992, Mr Strickland appears not to have been charged with committing offences since January 2002 and to have been on bail throughout the year preceding his sentence in January Given his problems, he was making an effort to avoid offending behaviour in that period. In those circumstances I consider it excessive to activate the entirety of the suspended sentence. [11] MUIR J: The applicant applies for leave to appeal against a sentence of 12 months imposed on him in the District Court at Dalby consequent upon a plea of guilty to the offence of entering premises with intent to commit an indictable offence. The

4 4 stated ground for the application is that the sentence was grossly excessive. At the same time the sentencing judge activated the balance of a partially suspended sentence of three years suspended after a period of 11 months with an operational period of three years imposed on 11 October 1999 for counts of entering a dwelling with intent to commit an indictable offence and using or threatening to use actual violence. The 12 months sentence was ordered to be served concurrently with the balance of the term of the earlier sentence. [12] Although the application does not specifically refer to the activated suspended sentence, it is appropriate to regard it within its scope. [13] The subject offence was committed when the applicant, who was 33 at the time of sentencing, broke into a business premises in Dalby by cutting a chain and padlock off a security gate and smashing a window in the side of the premises. No property was discovered to be stolen. The applicant was implicated in the offence by the discovery of his fingerprints on broken glass from the window. [14] The applicant has an extensive criminal history in Queensland which commenced in 1990 with convictions for stealing and unlawful use of a motor vehicle. It included other offences involving dishonesty and violence. He also has a considerable number of earlier convictions in New South Wales. The applicant informed the Court that he was not guilty of many of these offences but had pleaded guilty merely to get the benefit of a reduced sentence. Even if that were so, the convictions remain and the applicant must take the consequences of his guilty pleas. [15] The counsel who appeared before the sentencing judge at first instance submitted that it would be appropriate to activate a not insubstantial part of the suspended sentence but not all of it. He submitted that the applicant had an unfortunate childhood, suffered from epilepsy and had been stabbed in April The stabbing, it was said, led to the removal of a portion of the applicant s bowel and resulting constant stomach upsets and diarrhoea. The point of these submissions was to attempt to show that imprisonment would cause the applicant particular hardship. The applicant s counsel pointed also to the substantial gap between the conviction on 11 February 1999 and the date of the subject offence on 15 August Of course, 11 months of that gap is explicable by the period of imprisonment served by the applicant. [16] The applicant s plea of guilty was entered after the jury was empanelled, but was nevertheless taken into account by the sentencing judge. [17] The applicant also committed other offences between 25 May 2001 and 18 January 2002, including two counts of possession of dangerous drugs, of which he was convicted in the Magistrates Court. [18] Under s 147 of the Penalties and Sentences Act 1992 the sentencing judge, in the circumstances under consideration, was required to order the applicant to serve the whole of the suspended imprisonment unless he was of the opinion that it would be unjust to do so. In making his determination the sentencing judge was required to have regard, amongst other things, to the antecedents and any criminal history of the applicant and anything that satisfies the court that the applicant has made a genuine effort at rehabilitation since the original sentence was imposed.

5 5 [19] There is nothing trivial about the subject offence which, on the face of it, involved an element of premeditation. The applicant s previous criminal history counted against him as did the other convictions I have mentioned. The latter suggest a continuing disregard of the law and a lack of resolve concerning his rehabilitation. In those circumstances it could hardly be said that the sentencing judge erred in the exercise of his discretion in ordering that the balance of the suspended term of imprisonment be served. Nor can it be said that a sentence of 12 months, ordered to be served concurrently with the activated suspended sentence, was manifestly excessive. No comparable sentences were relied on to support the application. [20] I would dismiss the appeal.