Breust v Louk [1996] QCA 565

1 COURT OF APPEAL [1996] QCA 565 DAVIES JA DOWSETT J WHITE J CA No 400 of 1996 R R BREUST v. JAMES CHARLES LOUK Applicant BRISBANE ..DATE 14/11/96 JUDGMENT -- 1 of 3 -- 141196 T11/FLC14 M/T COA284/96 2 JUDGMENT DOWSETT J: The applicant was born on 31 July 1996 and is therefore presently 30 years of age. He was convicted on 28 August 1996 of stealing a bottle of rum from a bottle shop and was sentenced to three months imprisonment. At first blush for an offence of that kind the sentence on any view appears to me to be rather long but when one has regard to the applicant's criminal record one can see that that was not necessarily so in the present case. He has convictions going back to December 1985 which involve the possession and use of prohibited substances and offences of dishonesty. The worst feature of the record is a period of imprisonment for six years imposed in 1990 for armed robbery. He has had no convictions since November 1992 and I would normally be inclined to take that into consideration in exercising the sentencing discretion. A person who has a lengthy criminal record, but manages to stay out of trouble for two or three years is, in my view, demonstrating some attempt at reform which should be encouraged and the occasional slip can sometimes be forgiven. It is, I think, not necessary to say anything more about the circumstances of the offence or the antecedents of the applicant for present purposes. A complicating factor is that he has already served two months pursuant to this conviction. We are told that this is, in effect, in full discharge of the sentence. That view must take into account his entitlement to remissions. It seems, however, that after being released on bail in respect of this offence circumstances arose which lead to his being charged with armed robbery on the same day. He was therefore -- 2 of 3 -- 141196 T11/FLC14 M/T COA284/96 3 JUDGMENT taken back into custody and has remained there. He was actually dealt with for the present offence whilst on remand and he has not yet been dealt with in connection with that charge. We are told that he is anxious nonetheless to have the present sentence reduced because he perceives that he may then be able to obtain credit, as it were, for the time that he has spent in custody under the existing sentence. This seems to me to be encouraging perceptions about imprisonment and the judicial process which are not entirely desirable. Be that as it may, this matter must be dealt with on its own merits. It is relevant that he has already served the sentence in question. All in all, although I think that the sentence was at the higher end of the range and whilst I think that non- custodial sentences were available as options, despite his serious criminal record, I find myself unpersuaded that there has been a miscarriage of the sentencing discretion. As I say the sentence may be high in the appropriate range but it is, I think, within the appropriate range. In those circumstances I would be minded to refuse the application. DAVIES JA: I agree WHITE J: I agree DAVIES JA: Application is refused. ----- -- 3 of 3 --