Allen v the Queen

[1988] TASSC 21

Serial No A6/1988

CITATION:            Allen v The Queen [1988] TASSC 21; A6/1988

PARTIES:  ALLEN, Paul Anthony
  v
  THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 7/1988
DELIVERED ON:  9 March 1988
JUDGMENT OF:  Neasey, Cox and Wright JJ

Judgment Number:  6/1988
Number of paragraphs:  7

Serial No 6/1988
List "A"
File No CCA 7/1988

PAUL ANTHONY ALLEN v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NEASEY J
COX J
WRIGHT J
9 March 1988

ORDER OF THE COURT:

Application for leave to appeal dismissed.

Serial No 6/1988
List "A"
File No CCA 7/1988

PAUL ANTHONY ALLEN v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NEASEY J
COX J
WRIGHT J
9 March 1988

1. The applicant seeks leave to appeal against the sentence of 18 months' imprisonment followed by a further 18 months' supervised probation imposed upon him upon his conviction in respect of eight counts of burglary, six counts of stealing, one count of attempted burglary, one count of unlawfully injuring property and one count of unlawfully setting fire to property. These convictions arose out of a number of criminal incidents which occurred between October 1985 and 29 June 1986. In all the applicant participated in eight such enterprises, the first in October 1985 involving two burglaries of the Deloraine Golf Club and two thefts therefrom on the same night and a later spate of transactions which occurred between late April 1986 and the end of June of that year. The goods which were stolen from uninhabited properties such as country club houses, tool sheds and motor cars, consisted mainly of money, a shotgun and tools. One car was irreparably damaged by fire at the hands of the applicant and a set of scales was damaged by being smashed with a bar. The total value of the property stolen and the extent of the damage to property is not before us, but it is clearly not inconsiderable.

1. Four persons were jointly indicted in respect of these or other counts. One Menno Van Der Molen, who was convicted of 24 counts which comprised 16 separate criminal enterprises, received a sentence of 2½ years' imprisonment. His younger brother who was convicted of 14 counts in eight such enterprises received 12 months' imprisonment of which the execution of the last four months was suspended on conditions including supervised probation and his wife who was convicted of five counts of stealing was sentenced to six months' imprisonment, the execution of the whole of which was suspended on similar conditions.

1. The personal circumstances of the applicant included the fact that he was 25 years of age at the time of sentence, that he had a good industrial record, had one previous conviction for stealing when he was 17 years old, was a single man and was evaluated by the author of a pre–sentence report as being of low average intelligence, easily influenced and somewhat introverted. Having regard to the lengthy involvement of the applicant in this string of crimes, their nature and the damage occasioned, we are of the view that a significant sentence of imprisonment was clearly open to the learned trial judge and that one of 18 months' imprisonment with subsequent probation cannot be said to be manifestly excessive.

1. Then it was submitted that in view of the lesser sentence imposed upon one of the co–accused, Meindert Van Der Molen, the applicant would labour under a justifiable sense of grievance at the disparity between that sentence and his own for, it was urged, the circumstances of the two accused were not significantly different and this fact should have led to similar sentences being pronounced.

1. There were however several distinguishing features between the two men acknowledged by the applicant. He is five years' older than Meindert Van Der Molen, he has a previous conviction for stealing whereas the other man has none, the applicant was convicted of three more crimes than he and the applicant's involvement commenced with the crimes in October 1985 whereas the first of Meindert Van Der Molen's crimes was committed in late April 1986.

1. In our view these matters are such that it was appropriate for the learned trial judge to make a differentiation in the sentences he imposed on these two accused. He had presided over the trial of all four and had an advantage not possessed by an appeal court in assessing the parts played by and the general circumstances of each offender. There were, as we say, sufficient differences between the parts played by the applicant and the accused with whom he has chosen to make comparison and the circumstances of the two to justify different treatment of each. The disparity in the treatment of each has not, in our view, been shown to be such as to engender a justifiable sense of grievance in the applicant or to create any appearance of injustice to the objective bystander.

1. In our view the application should be dismissed.