Esselink v Shipman

[1993] QCA 446

IN THE COURT OF APPEAL  [1993] QCA 446

SUPREME COURT OF QUEENSLAND

C.A. No. 322 of 1993

Brisbane

[Esselink v. Shipman]

BETWEEN

C.F. ESSELINK

AND

BRADLEY SCOTT SHIPMAN
  (Applicant)

The President
                  Mr Justice McPherson
                  Mr Justice Mackenzie

Judgment delivered  5/11/93

Reasons for judgment by the Court

APPLICATION GRANTED.  APPEAL ALLOWED TO THE EXTENT OF OMITTING THE RESTITUTION ORDER AND BY SUBSTITUTING SIX MONTHS INSTEAD OF NINE MONTHS AS THE NON-PAROLE PERIOD FOR EACH SENTENCE OF IMPRISONMENT.

CATCHWORDS    CRIMINAL LAW - SENTENCE - Breaking and entering  - Wilful damage - Plea of guilty - Previous convictions - Whether likely to pay restitution order.

Counsel:P. Alcorn for the applicant

P. Callaghan for the respondent

Solicitors:Legal Aid Office for the applicant

Director of Prosecutions for the respondent

Hearing Date: 2 November 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 322 of 1993

Brisbane

Before    The President
         Mr Justice McPherson
         Mr Justice Mackenzie

[Esselink v. Shipman]

BETWEEN

C.F. ESSELINK

AND

BRADLEY SCOTT SHIPMAN
  (Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Fifth day of November 1993

The applicant for leave to appeal pleaded guilty in the Magistrates Court to one charge of breaking and entering the offices of Legacy in South Brisbane, and another of wilfully damaging property in those offices.  He had been located, evidently inebriated, near a wheelie bin at the premises at 1 am on 3 August 1993 when the Fire Brigade attended in response to an alarm.  A quantity of money and some keys were discovered in the bin.  Various items of Legacy office furniture were found to have suffered damage by efforts to open them using a jemmy.  The total repair bill was estimated at $1,747.
     The magistrate imposed sentences, to be served concurrently, of imprisonment for 12 months in respect of each offence.  He recommended a non-parole period of 9 months from the date of sentence, which was 24 August 1993; and he ordered the applicant to make restitution of $1,747 within 18 months from that date, in default of which he would be imprisoned for four months.
     The applicant is now 21 years of age but has an extensive criminal record, which includes 6 convictions related to breaking and entering, 10 of stealing, and a further 7 of unlawful use of a motor vehicle.  He has been given the benefit of probation on three previous occasions.  It cannot have been very long after serving a sentence of imprisonment of 10 months for previous offences that he committed the subject offences here.
     It seems clear enough that the underlying problem is the applicant's addiction to alcohol.  It is nevertheless not obvious from the material in the record, supplemented as it is by an affidavit from the police prosecutor, why the magistrate recommended parole to begin at a point three fourths of the way through the sentence; nor why he ordered restitution in a case where, from everything we are now able to discover, it seems obvious that in the end the default penalty will certainly come into effect.  While it can scarcely be expected that busy magistrates, having as they often do so many cases to deal with, should always provide precise or detailed reasons for many of the penalties they impose, it nevertheless would have been helpful here to have known the reasoning that led to the orders against the applicant in this instance.  Having no explanation from the magistrate, we have not ourselves succeeded in identifying the reason why the parole recommendation and the restitution orders were made in this case.
     In these circumstances we feel bound to conclude that the sentencing discretion has in some respects miscarried.  We will therefore grant the application and allow the appeal to the extent of varying the sentences by omitting the restitution order and by substituting six months in place of nine months as the non-parole period in each instance.