Campbell v Bevens

[1993] QCA 343

IN THE COURT OF APPEAL [1993] QCA 343

SUPREME COURT OF QUEENSLAND

C.A. No. 258 of 1993

Brisbane

[Re Campbell v. Bevens]

BETWEEN:

G.C. CAMPBELL

v.

CHRISTOPHER IAN JOHN BEVENS

(Applicant)

The President Justice White Mr. Justice Cullinane

Judgment delivered 15/09/93
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCES IMPOSED BELOW AND IN LIEU THEREOF ORDER THAT: (1)IN RESPECT OF THE UNLAWFUL USE OF THE MOTOR VEHICLE ON 30 NOVEMBER 1990, IMPRISONMENT FOR 3 MONTHS;

(2)IN RESPECT OF THE FAILURE TO MAKE RESTITUTION IN ACCORDANCE WITH THE SENTENCE FOR THE UNLAWFUL USE OF THE MOTOR VEHICLE ON 12 JULY 1989, IMPRISONMENT FOR 1 MONTH TO BE SERVED CUMULATIVELY UPON THE PERIOD IMPOSED IN (1) ABOVE;

(3)IN RESPECT OF THE TWO ASSAULTS 12 DAYS IMPRISONMENT IN RELATION TO EACH ASSAULT, ORDER THAT THOSE TERMS TO BE SERVED CONCURRENTLY WITH EACH OTHER AND WITH THE PERIOD IMPOSED IN (1) ABOVE;

(4)IN RESPECT OF EACH FAILURE TO APPEAR, IMPRISONMENT FOR 1 MONTH EACH TO BE SERVED CUMULATIVELY UPON THE OTHER AND CUMULATIVELY UPON THE OTHER SENTENCES IMPOSED.

CATCHWORDS:Appeal against sentence - s.33 of the Bail Act - 1980 to 1989 - whether sentencing cumulative or concurrent - s.185(2)(b) Penalties & Sentences Act 1992.

Counsel:	Mr P. Alcorn for the applicant Mrs. L.J. Clare for the respondent
Solicitors:	Legal Aid Office for the applicant Director of Prosecutions for the respondent

Hearing Date:09/09/93

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 258 of 1993

Brisbane

Before The President

White J

Cullinane J

[Re Campbell v. Bevens]

BETWEEN:

G.C. CAMPBELL

v.

CHRISTOPHER IAN JOHN BEVENS

(Applicant)

REASONS FOR JUDGEMENT - THE COURT

Judgment delivered 15/09/93

The applicant has applied for leave to appeal against sentences imposed in the Magistrate's Court at Southport on 5 July 1993. He is 23 years of age and in the first year of a

university course. He has no criminal history except for the
matters referred to below.

On 12 July 1989, the applicant was convicted of unlawful use of a motor vehicle. He was placed on probation for 12 months and ordered to perform unpaid community service for 150 hours and to make restitution of $1,441.80. At the time, he was 19 years of age. He completed the probation and community

service but did not pay the restitution because, he says, he had no money although in his affidavit he deposes to travelling overseas to the United States to visit relatives at about that time.

Subsequently, the applicant was charged with a further

offence of unlawful use of a motor vehicle on 30 November 1990
using a different name. He was then almost 21 years of age.

In mid June 1993 the applicant was apprehended by police.

By then he had failed to answer bail on two occasions on

30 November 1990 and on 4 February 1993 and he then spent 17

days on remand in the Southport watch house before appearing and

pleading guilty to a number of charges on 5 July 1993.

In respect of his original offence of unlawful use of a motor vehicle, the probation order was revoked and he was convicted and fined $500.00 and ordered to pay restitution of $1,441.80 immediately and in default sentenced to two months

imprisonment.

In respect of the unlawful use of a motor vehicle on the

30 November 1990 he was sentenced to three months imprisonment

cumulative.

In respect of the two failures to appear in answer to his

bail he was sentenced to four months on one and two months on

the other to be served cumulatively.

In respect of charges that on 1 June 1993 he committed an aggravated assault upon a female and had caused her bodily harm he was convicted and fined $400 and in default 12 days imprisonment on each, concurrent with each other but cumulative

on the other offences.

The effect of these sentences is that the applicant has a

total period of 11 months and 12 days imprisonment in addition

to the 17 days spent on remand.

It seems that, when sentencing, the magistrate erroneously considered that the second offence of unlawful use of a motor vehicle committed on 30 November 1990 occurred while the applicant was on probation in respect of the previous offence of the same nature. That seems to have caused the magistrate to

impose heavier sentences than were appropriate.

The provisions of s.33 of the Bail Act require that any

term of imprisonment imposed for failure to appear in accordance

with the undertaking must be served upon the expiration of any other term of imprisonment imposed. Where an offender fails to pay a penalty the court may order the offender to be imprisoned

which term is to be served cumulatively upon any other term of imprisonment, unless the court otherwise orders, s.185(2)(b)

Penalties and Sentences Act 1992.

It is plain that the legislature is particularly concerned

to underline the seriousness of a breach of the undertaking to

appear by requiring the punishment for breach to be served separately from any other punishment. However, when sentencing for a number of offences, the sentencing court should have

regard to the overall sentence imposed in relation to the degree of criminality demonstrated. It appears that the court below did not undertake that exercise because when looked at in that

way the total term of imprisonment is manifestly excessive. The applicant was a young offender and at the time of sentencing he had embarked upon a university course which would be seriously

disrupted by the total term of imprisonment imposed upon him and

he had already spent 17 days on remand.

This is not to suggest that a term of imprisonment was not called for, particularly bearing in mind the breaches of the Bail Act and the repetition of the offence of unlawful use of a

motor vehicle. In all the circumstances an overall sentence of 6 months imprisonment would have given due recognition to those

matters.

The application for leave to appeal against sentence should

be allowed and in lieu of the sentences imposed below the

applicant should be sentenced:

(1)In respect of the unlawful use of the motor vehicle on

30 November 1990, imprisonment for 3 months;

(2)In respect of the failure to make restitution in accordance with the sentence for the unlawful use of the motor vehicle on 12 July 1989, imprisonment for 1

month to be served cumulatively upon the period
imposed in (1) above;

(3)In respect of the two assaults 12 days imprisonment in relation to each assault, but order that those terms to be served concurrently with each other and with the

period imposed in (1) above;

(4)In respect of each failure to appear, imprisonment for 1

month each to be served cumulatively upon the other
and cumulatively upon the other sentences imposed.