Carney v The Queen
[2004] QDC 83
•27/4/04
DISTRICT COURT OF QUEENSLAND
CITATION:
Carney v. The Queen [2004] QDC 083
PARTIES:
MERRYL CAROLINE CARNEY (Applicant)
v.
THE QUEEN (Respondent)
FILE NO/S:
2/2003
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court Ipswich
DELIVERED ON:
27/4/04
DELIVERED AT:
Ipswich
HEARING DATE:
20/2/04
JUDGE:
Richards DCJ
ORDER:
Appeal allowed. Sentence set aside. Conviction recorded. Sentenced to 6 weeks imprisonment wholly suspended for 3 months
SOLICITORS:
Mr Fairclough of Walker Pender for the Appellant
Ms Christiansen for the DPP
This is an appeal against sentence imposed on 21 June 2003 in the Ipswich Magistrates Court. The applicant was sentenced in relation to two counts of stealing and was convicted and sentenced to six weeks imprisonment and in relation to a breach of probation, the breach was proven, the order was revoked and she was re-sentenced with a $450 fine in default 18 days imprisonment with no time to pay.
The facts of the offence are that as a result of information received Police from the Booval Fair Police Beat intercepted the prisoner in a car park of the Booval Fair Shopping Centre. Police tried to speak with her however she was uncooperative and walked away. She was then placed under arrest and taken to the police beat office. During this time police were approached by a staff member from the Terry White Chemist and provided a plastic bag containing a number of pharmacy medications and toiletry items valued at $65.46. When asked about the items the prisoner stated that she had taken the items from the shelves and placed them in her trolley and then left the store without attempting to pay for them, after which she placed them inside a bag. Police also observed that she was carrying further plastic bags, one of which contained a TV Week magazine and two grey folders valued at $10.95 and the prisoner stated she had stolen them from the newsagency in Booval Fair.
She was 51 years at the time of sentence and at the time of committing the offences. She had a criminal history which included convictions for stealing in 1992 and shoplifting in 1992. She also had a further conviction for stealing in 1995. She was on probation from the 16 August 2001 for four charges of shoplifting and the stealing charges constituted a breach of that probation.
A pre-sentence report was obtained from Corrective Services which indicated that she had been difficult to work with in that she has continually made unfounded allegations against workers of the Department if they challenge her. It was suggested that she was not a suitable candidate for further community based orders. The learned Magistrate did not consider that sentence should be a sentence of last resort and it was conceded by the Crown at this appeal that the sentence was manifestly excessive. Although she did have previous similar offending, the applicant had not previously been sentenced to a term of imprisonment, and these were, in the scheme of things, fairly minor offences. It was submitted on behalf of the applicant that a further term of probation or an intensive corrections order would be appropriate. At the very least a wholly suspended term of imprisonment would have been appropriate. Similarly, with the probation it is clear from her attitude at sentence that she was in fact in conflict with the Department and in light of that it seems pointless to continue the probation. However the next step from probation was not an effect of 18 days imprisonment because the fine with no time to pay was always going to be converted into imprisonment. In my view, either a fine or a further term of suspended imprisonment would have been the appropriate sentence.
The appeal is allowed, sentence is set aside and instead the applicant is sentenced to 6 weeks imprisonment wholly suspended for a period of three months. In relation to the breach of probation the breach is proved, the order revoked, she is resentenced to six weeks imprisonment, wholly suspended for three months.
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