Crowther v Flemming [1996] QCA 314

1 COURT OF APPEAL [1996] QCA 314 McPHERSON JA DAVIES JA DEMACK J CA No 131 of 1996 J H CROWTHER v. MATHEW RUSEL FLEMING Applicant BRISBANE ..DATE 12/06/96 JUDGMENT -- 1 of 6 -- 120696 2 JUDGMENT McPHERSON JA: The applicant was convicted in the Magistrates Court at Cairns of three offences, one of stealing on 1 April 1996 for which he was sentenced to imprisonment for three months, one of unlawful use of a motor vehicle on 18 February 1996 for which he was sentenced to 12 months imprisonment, and another of breaking, entering and stealing on 19 February 1996 for which again he received 12 months imprisonment. The magistrate made the sentence of three months imprisonment for the stealing offence cumulative upon the sentences, which between themselves were concurrent, of 12 months for the other two offences. The upshot was to impose a sentence of 15 months imprisonment for the three offences involved. It should perhaps be added that the two offences committed in February were committed in Brisbane, and that on 1 April at the Mossman Gorge. So far as the details are concerned, the unlawful use offence, which was the first of the three committed on 18 February 1996, involved breaking into a car parked at the Logan Hyperdome, hot- wiring it, and then driving it to a service station. Later the vehicle was driven around for awhile and then left in the bush where it was recovered. There is no evidence of any damage being done although it is possible that both the car and the service station, to which I will refer in a moment, were damaged in some way. What happened at the service station was that the applicant broke into the service station, forced open the shop section of it, and took bottles of Coca Cola, chips and confectionery. The items involved were worth only about $40. The doors of the -- 2 of 6 -- 120696 3 JUDGMENT service station on the shop part of it were kicked open and it may be that they suffered some damage. That, however, is not made the subject of a separate charge. The stealing strikes me as a little more serious in the overall context. The complainant in that instance was a tourist from Germany. He and his wife were swimming at the Mossman Gorge. They placed their bag on the sand under a towel while they went off to swim. The applicant picked it up and ran to his friends who were waiting in a vehicle. They threw some of the property out of the window and took money from the bag. The property they threw away included wallets, camera, watches and so on. I notice that the applicant in relation to this matter was charged with stealing money and a camera and passports; but in fact it appears that the property was recovered, with the exception of the camera which was damaged by being thrown away, and a watch of some value. The applicant was 19 years of age. He has some previous convictions involving possession of a dangerous drug, obstructing police, and what is described as possession of a "thing". These offences were committed and convictions recorded on different occasions in either the Beenleigh Magistrates Court or the Southport Magistrates Court. He claimed that he was unemployed, desperate for food or money, and unable, at the particular time of the offences now before us, to obtain unemployment relief. That, he said, was why he committed the last offence. -- 3 of 6 -- 120696 4 JUDGMENT In my view the sentence overall of 15 months is plainly excessive having regard to the relatively slight degree of criminality involved in all three offences. I am, however, persuaded that some prison sentence was appropriate in the circumstances. He has not yet been given the benefit of probation. Having served some two months and 10 days, it is my view that the sentence imposed in the Court below should be varied by reducing it to a term of three months from the date on which the sentence was imposed, which I notice was 2 April 1996. At the end of that period I consider that the applicant should be released on probation for a term of 12 months starting from the date of his release. In order to produce that result, it would, I think, be desirable to reduce the sentences of 12 months imprisonment imposed in respect of the offences of unlawful use of a motor vehicle and the breaking, entering and stealing to three months in each case, with a direction that all three sentences be served concurrently. That is how, I suggest, we should dispose of this application. DAVIES JA: I agree. DEMACK J: I agree. McPHERSON JA: Accordingly, the application will be granted; the appeal allowed, the sentences on the charges of unlawful use, and break and enter will be reduced to three months imprisonment; and it be directed that the sentences for all -- 4 of 6 -- 120696 5 JUDGMENT three offences be served concurrently. It is further ordered that when the sentence of imprisonment has been served, the applicant be granted probation. Now, do we have to go further into that? MS RICHARDS: I think Your Honour has to make an order that he report within 24 hours of his release to the probation office at Cairns would be the nearest because he is in Lotus Glen. McPHERSON JA: He is at Lotus Glen, is he? MS RICHARDS: Yes. McPHERSON JA: And you have his instructions to accept probation. I assumed that from the fact that that was what you were arguing for. MS RICHARDS: Yes, and that is what we asked for at the sentence as well, yes. McPHERSON JA: Very well. The probation will be subject to the requirement that the applicant report on his release to the community correctional officer at Cairns, and the terms of the probation order will be otherwise as is standard in these cases, to which conditions I understand he has already signified his consent. DEMACK J: The other thing, Mrs Richards, the second ground of the notice of appeal was against the actual conviction. MS RICHARDS: Yes. DEMACK J: You abandon that I presume. MS RICHARDS: Yes. DEMACK J: As he pleaded guilty. MS RICHARDS: He pleaded guilty, yes. McPHERSON JA: Yes. MS RICHARDS: I think that was just an error in not deleting. DEMACK J: Maybe it is standard form in Lotus Glen to appeal against convictions as unsafe and unsatisfactory. I don't know. -- 5 of 6 -- 120696 6 JUDGMENT MS RICHARDS: Perhaps, yes. McPHERSON JA: It may just be that counsel like a challenge from time to time. McPHERSON JA: Well, the Court dismisses the appeal against conviction, which appears to have been included in the notice of appeal only formally by failing to strike it out. That will be the order of the Court there. ----- -- 6 of 6 --