New South Wales Court of Criminal Appeal CITATION : R v Quinn [2002] NSWCCA 508 FILE NUMBER(S) : CCA 60299/02 HEARING DATE(S) : 13 December 2002 JUDGMENT DATE : 19 December 2002 PARTIES : Regina Allan John Quinn JUDGMENT OF : Sperling J at 1; Buddin J at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0326 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : Mr W Dawe QC for the Crown Mr J Stratton for the Applicant SOLICITORS : S E O'Connor for the Director of Public Prosecutions D J Humphreys for the Applicant CATCHWORDS : Criminal Law - sentencing - no question of principle LEGISLATION CITED : Crimes Act 1900, s112, s117, s178BA, s300 CASES CITED: Hammoud (2000) 118 A Crim R 66 Pearce (1998) 194 CLR 610 DECISION : (1) Application for leave to appeal on severity of sentence granted; (2) Appeal allowed; (3) Set aside the sentence imposed for the offence under Count 7; (4) Resentence the applicant for the offence under Count 7 as follows: The applicant is sentenced to imprisonment for a term of three years commencing on 1 July 2002 with a non-parole period of one year expiring on 30 June 2003, on which date the applicant is to be released from custody. - 6 -IN THE COURT OF CRIMINAL APPEAL 60299/02 Sperling J Buddin J Thursday, 19 December 2002 R v Allan John Quinn Judgment 1 Sperling J: The applicant was born on 13 January 1952. He is now 50 years of age. He has a very extensive criminal record dating back to childhood, with numerous convictions for property offences, including break, enter and steal and armed robbery, and for crimes of dishonesty such as obtaining money by false pretences. 2 In the present matter, the applicant pleaded guilty to seven counts of obtaining money by deception contrary to s178BA(1) of the Crimes Act 1900 (maximum penalty five years imprisonment), five counts of making a false instrument contrary to s300(1) (maximum penalty ten years imprisonment), five counts of using a false instrument contrary to s300(2) (maximum penalty ten years imprisonment), two counts of larceny contrary to s117 (maximum penalty five years imprisonment) and six counts of break enter and steal contrary to s112(1) (maximum penalty 14 years imprisonment). 3 In addition, the following matters were taken into account on Form 1: 55 counts of obtaining money by deception, one count of attempting to obtain money by deception, one count of stealing from the person, two counts of stealing, 32 counts of making a false instrument, 30 counts of using a false instrument and four counts of break enter and steal. 4 The offences were committed between 10 April 1997 and 9 February 1999. The total amount involved in the offences was in excess of $300,000. 5 The applicant had been sentenced in Queensland on 17 November 2000 on 24 counts of a similar nature. The amount involved there was approximately $100,000. The applicant was sentenced to a term of imprisonment of four years on certain of the counts, and a term of two years' imprisonment, cumulative, but with a non-parole period of two years over-all. The effective sentence was six years commencing on 1 July 1999, with a non-parole period of two years. 6 The applicant's modus operandi appears to have been much the same in relation to the offences committed in both Queensland and this state. It was described as follows in Gibson DCJ's remarks on sentence here: [T] he Prisoner entered the homes of elderly people by posing as a bank official or breaking in, and persuaded them to give him details of their banking and stole cheque books or bank deposit books or ATM cards after tricking them into giving a copy of their signature. He would then go to their bank or machine and withdraw their money. It was a cruel and heartless trick carried out on exceedingly vulnerable elderly citizens and was consistent with his conduct over a large number of years. The remarks on sentence in the Queensland proceedings also indicate that a large number of the offences committed there were perpetrated on elderly people. 7 Upon expiration of the non-parole period under the Queensland sentence on 30 June 2001, the applicant was transferred to New South Wales where he remained in custody until sentenced by Gibson DCJ on 15 May 2002. 8 Gibson DCJ went about the sentencing process for the New South Wales offences in the following way. His Honour first determined what he regarded as the appropriate sentence for the total criminality, including both the Queensland and NSW offences, as if the applicant were being sentenced for all such offences on the one occasion. The appropriate starting point for that sentence was, in his Honour's view, ten years' imprisonment. His Honour reduced that by 40 per cent to six years for the utilitarian value of the applicant's pleas of guilty and for assistance given by the applicant to the NSW authorities. The assistance had resulted in the applicant having to serve his sentence, since transfer to New South Wales, in a Special Purpose Centre, with attendant hardship over and above normal imprisonment. 9 Evidence of assistance to the Queensland authorities was also before Gibson DCJ. That evidence had not been led at the Queensland sentencing hearing. His Honour rejected the submission that he could and should take that assistance into account. Whether a discount is allowable for assistance to interstate authorities was debated on the hearing of this appeal. I am strongly inclined to think it is allowable, but it is unnecessary to resolve the question in the present case for the reasons which follow. 10 His Honour then imposed the following sentences for the NSW offences: Count 21 (one of the use false instrument offences), taking into account the offences on Form 1: A fixed term of imprisonment of four years commencing on 1 July 1999 and expiring on 30 June 2003. Count 7 (one of the break enter and steal offences): A term of imprisonment for two years, commencing on 1 July 2003, with a non-parole period of one year expiring on 30 June 2004. All other counts: A fixed term of imprisonment of three years commencing on 1 July 1999. 11 I refer to the principles laid down by the High Court in Pearce (1998) 194 CLR 610 at [45]-[48], as explained by Simpson J in Hammoud (2000) 118 A Crim R 66 at [7]-[10]. The large number of offences involved in the present case and the existence of sentences imposed in another state under a different sentencing regime make the application of the principles in Pearce difficult to say the least. Precisely, how those principles are to be applied in a case such as this is by no means clear. Resolution of that difficulty is not necessary in this instance, however, for the reasons which follow later in the judgment. 12 The effect of the sentences imposed by Gibson DCJ was to produce an overall effective sentence of six years for the offences committed both in Queensland and in New South Wales, with an effective non-parole period of five years. 13 The overall effective sentence of six years equated with the Queensland sentences of four years and two years, cumulative, for the Queensland offences alone. This did not involve any necessary inconsistency because assistance to the authorities was taken into account in his Honour's assessment of an appropriate overall effective sentence for all offences, whereas no such factor had been taken into account in relation to the Queensland offences alone when the applicant was sentenced in that state. 14 However, an overall effective sentence for the totality of criminality involved in the New South Wales and Queensland offences together, after allowing appropriate discounts for the early pleas of guilty in New South Wales and assistance to the New South Wales authorities, could not possibly have been determined at less than an effective term of six years. The appeal cannot therefore be allowed in relation to that overall effective sentence. 15 It is then to be noticed, however, that the effective overall non-parole period of five years for all offences, which is the product of the sentences imposed by Gibson DCJ, is substantially in excess of the conventional formula relative to the effective overall sentence of six years. No reason is apparent for such a discrepancy. 16 I would regard the overall effective non-parole period of five years as excessive. The application for leave to appeal should be granted and the appeal should be allowed on that account. 17 I would regard an overall effective non-parole period of four years in relation to all offences as appropriate. I have taken into account that the applicant is serving his present sentence in protection as constituting special circumstances in that regard. 18 I would also regard that overall effective non-parole period as the minimum which could be imposed in the proper exercise of the court's discretion, having regard to the objective seriousness of the offences in totality. That being so, the way in which the principles in Pearce bear upon a case such as this does not require decision for the present purpose. Likewise, the question of whether regard is to be had to assistance given to the authorities in another state does not require decision in this case. 19 My view of the appropriate result may conveniently be implemented by an adjustment to the sentences imposed by Gibson DCJ by substituting for the sentence in relation to Count 7 a sentence of three years imprisonment commencing on 1 July 2002, with a non-parole period of one year. 20 I propose the following orders: (1) Application for leave to appeal on severity of sentence granted. (2) Appeal allowed. (3) Set aside the sentence imposed for the offence under Count 7. (4) Resentence the applicant for the offence under Count 7 as follows: The applicant is sentenced to imprisonment for a term of three years commencing on 1 July 2002 with a non-parole period of one year expiring on 30 June 2003, on which date the applicant is to be released from custody. 21 Buddin J: I agree with Sperling J. -o0o- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.