Holzberger v Yule

[1995] QCA 566

IN THE COURT OF APPEAL	[1995] QCA 566
SUPREME COURT OF QUEENSLAND	C.A. No. 384 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. Dowsett J.
[R. v. Yule]

MCLEAN AND HOLZBERGER

v.

SHANE JAMES YULE

(Applicant)

FITZGERALD P.

PINCUS J.A. DOWSETT J.

Judgment delivered 19/12/1995

REASONS FOR JUDGMENT - THE COURT

Application for leave to appeal against sentence refused

CATCHWORDS:	CRIMINAL LAW - sentences - inconsistency of statements - whether the applicant was a lesser offender
Counsel:	Mr Yule appeared in person M.J. Byrne Q.C. with him J. Sheridan for the Crown
Solicitors:	Queensland Director of Public Prosecution for the Crown
Date(s) of Hearing:	25 October 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19/12/1995

This matter came before the Court as an application for leave to appeal against sentences imposed in the Magistrates Court at Southport on 29 August 1995. The applicant pleaded guilty to two counts of unlawful use of a motor vehicle, between 14 and 18 August 1995 and on 21 August 1995. He was sentenced to imprisonment for nine months on each count, to be served concurrently.

In this Court, the applicant was not legally represented, and his statements to the Court raised uncertainty as to the basis upon which he had been sentenced. Unfortunately, a tape containing a record of the Magistrates Court proceeding cannot be obtained and, in the circumstances, affidavits have been obtained from the police prosecutor and the solicitor who represented the applicant before the magistrate.

The prosecutor’s affidavit attaches various documents, including a report with respect to the proceeding before the magistrate which, the prosecutor says, is to the best of his recollection true and correct. A copy of that report is a schedule to this judgment.

The solicitor who represented the applicant says that he has little or no recollection of the statements made by the prosecutor but that, from notes which he had made concerning the applicant’s circumstances, he recalls emphasising the following matters to the magistrate:

“(a)	That the matter was a plea of guilty and that it was an early plea.
(b)	That the [applicant] had been in custody of eight days prior to pleading guilty.
(c)	That the [applicant] was not involved in the stealing of the vehicles and was only in the car as a passenger, albeit knowing that the car was stolen.
(d)	The [applicant] had no previous convictions for this type of offence (unlawful use of a motor vehicle).
(e)	That although the [applicant] had a number of entries on his criminal history for serious offences, e.g. armed robbery in company (1985) and rape (1986), his history otherwise was entirely drug related and that he had a substantial drug problem for some time. The [applicant] had started with the use of marijuana as a teenager and progressed on to the use of harder drugs over time. He had an addiction of amphetamines which he was ‘trying to beat’.”

The applicant’s solicitor also informed the magistrate that the applicant had his own business, S & S Mowing Services, but that he had not had a lot of work during the winter months and was “struggling for money”.

In his affidavit, the solicitor also said that the magistrate sentenced the applicant after adjourning for a period to consider the matter; when sentencing the applicant the magistrate said “that considering all the material before him and taking into account the submissions he had heard and having regard to the [applicant’s] previous criminal convictions that imprisonment was warranted in the circumstances ...”.

There is no suggestion in the affidavit from the applicant’s solicitor that he challenged the prosecution account of his involvement in the first offence, including statements that it was the applicant who had sold the first stolen vehicle to the purchaser, Michelle Amiott, and received the first payment. Nor was it disputed that it was the applicant who left the passenger side of the second stolen vehicle and went to Amiott’s residence. Before this Court, the applicant asserted that he went to Miss Amiott’s residence merely to request her to “Come downstairs”, and that he did not “stand to profit from the sale of any Car”, “receive moneys from Michelle Amiott for the payment of a Car as is alleged”, or “drive the Car”. According to his statements to this Court, the applicant “was not Involved in the theft” of either vehicle, but “pleaded guilty to these charges because I have knowledge of what was going on, In the hope of achieving leniency by the Courts for my minor part or Involvement”.

In our opinion, this Court should not act upon the applicant’s statements insofar as they are inconsistent with statements made by the prosecutor to the magistrate, which were neither challenged at the time nor inconsistent with statements made to the magistrate by the applicant’s solicitor. That leaves the applicant’s sentences to be considered on the basis that he was not involved in the stealing of the vehicles, and was only a passenger in the vehicle the subject of the second charge, albeit knowing that it was stolen. However, it also leaves him to be sentenced on the basis that he was directly involved in the sale of the first vehicle, with the only inference that that also was known to be stolen.

In these circumstances, the applicant’s submissions can be briefly summarised. According to him, his co-offender, Milesi, had a greater culpability and two prior convictions for similar offences but received the same sentences as did the applicant. The applicant also indicated that since his serious offences in 1985 and 1986 he had led a relatively crime-free existence, with his offences mainly confined to possession and supply of dangerous drugs and associated implements, although a perusal of his criminal history indicates that he has also been convicted of unlicensed possession of weapons and permitting a place to be used for the commission of a crime. The applicant also referred to his prospective punishment for breach of probation because he was on probation when he committed the subject offences.

Counsel for the prosecution understandably relied upon the circumstance that the applicant was on probation at the time of the present offences and his bad criminal history, pointing out that, on the occasion of the second offence, the applicant had only that day been released from custody in relation to another matter. Reference was also made to the commercial nature of the activity and it was submitted that a sentence of imprisonment was inevitable, that there was no sufficient basis for differentiating between the applicant and his co-offender, who also has a bad criminal history, and that the period of imprisonment imposed was well within the magistrate’s sentencing discretion.

Given the applicant’s age, 30 years, born on 18 March 1965, his criminal history, the nature of the offences and the circumstance that they were committed whilst the applicant was on probation, there is no basis for a conclusion that the sentences are manifestly excessive. So far as comparison with the co-offender is concerned, while the co-offender has previous convictions for offences of this nature, his record as a whole is not as bad as the applicant’s. Further, except to the extent indicated by what was stated to the magistrate, we are not prepared to accept the applicant’s claim that he was the lesser offender.

In the circumstances, the application seems to us to be without merit and should be refused.
Prosecution Corps
SOUTHPORT
29 November, 1995

I appeared as Prosecutor at Southport Magistrates Court before Mr. G. WILKIE S.M. on the 29th August, 1995. Shane James YULE appeared before the Court represented by Mr. A. MOLONEY, Solicitors, from Price and Roobottom. YULE appeared with Craig Stephen MILESI who was represented by Mr. B. MARTIN as Duty Solicitor.

Both defendants were charged by the Magistrate with the following charges:-

That on dates between the 14th of August 1995 and the 18th August, 1995 at Brisbane in the State of Queensland you both unlawfully used a motor vehicle namely a Ford Sedan w/out the consent of William STEPHENSON the person in lawful possession thereof.

That on the 21st day of August, 1995 at Brisbane in the State of Queensland you both unlawfully used a motor vehicle namely a Ford Sedan without the consent of Alfio LOFARO the person in lawful possession thereof.

MILESI was also charged with the following charges:-

That on the 21st day of August, 1995 at Biggera Waters in the Magistrates Courts District of Southport in the State of Queensland one Craig Stephen MILESI possessed property reasonably suspected of being tainted property.

That on the 15th day of August, 1995 at Gold Coast in the State of Queensland one Craig Stephen MILESI stole number plates bearing Queensland registration 614PNT the property of the Department of Transport.

Both Solicitors then indicated that the defendants wished to plead guilty to the charges. Both Solicitors indicated that their clients elected to be dealt with in the Magistrates Court. I then read the following facts to the Court.

1. The complainant in relation to this matter is william STEPHENSON. The complainant is the owner of a Ford Falcon sedan bearing Queensland registration plates 072AAW. The complainant states that between 7.15 am and 3.30 pm on the 15th day of August, 1995, his vehicle was stolen from outside Brisbane boys grammar school situated in Gregory Terrace, Brisbane. He subsequently reported the matter to Police. No permission/authority was given to any person to take or use the vehicle.

On the 20th August, 1995 Police located the complainants vehicle at an address in Back Street, Biggera Waters. The vehicle had registration plates 614PNT displayed on both the front and rear of the vehicle.

A subsequent check on these plates revealed that they had been stolen from a vehicle which was
parked in the Australia Fair Shopping Centre, Southport on 15 August, 1995.
Police located a Michelle AMIOTT at 8/24 Back Street, Biggera Waters. AMIOTT stated that
she had purchased the vehicle from a person she knew only as Shane. She stated that she had
paid him $500.00 and was to pay a further $3,000.00 over a period of time. She stated that she
purchased the vehicle on the 17th of August, 1995 where it had been delivered to her address by
Shane and Craig. She stated that Shane was to collect further payment from her on the evening
of the 21 August, 1995.

At approximately 8.30 pm on Monday 21st August, 1995 Police conducted surveillance on the address of AMIOTT, when they saw a silver ford sedan drive into the driveway of AMIOTT’S residential address. The defendant YULE was seen to elave the passanger side of the vehicle and attend the residence of AMIOTT. The defendant MILESI was seen to be the driver of the vehicle. Both defendants were subsequently detained. Subsequent checks revealed that the silver Ford had been stolen from a Brisbane address at 6.30pm even date. The complainant with respect of this vehicle is Alfio LOFARO. The complainant is the owner and the vehicle bears registration 531 PRT. No permission or authority given by the owner to any person to take or use the vehicle.

The defendant MILESI stated that he had tolen the plates re charge 2 from a vehicle in a carpark in Southport. He further stated that he had stolen the silver Ford from a suburb in Brisbane earlier in the evening. He declined to be interviewed with respect of these matters. He denied any knowledge of all matters.

When located they were in possession of a keyring that had numerous Ford Falcon ignuition keys and boot keys on it.

They were both arrested and charged.

The defendant YULE is 30 years of age. He resides at Caboolture with his defact wife and children. I produce a copy of his criminal history.

The defendant MILESI is 28 years of age and resides at Burpengary with his mother. He is separated from his wife and children. I produced a copy of his criminal history.

Restitution of $100 was requested from each defendant for property missing from the complainants vehicle. Both Solicitors made submissions which I cannot now recall. The Magistrate then stood the matter down until afternoon court at 2.30pm so that he could decide on sentence.

When Court resumed the Magistrate made certain comments which I cannot now recall. Both defendants were then convicted and sentenced to 9 months imprisonment to commence from 21.8.95.

No recommendation was made for parole. Both defendants were also ordered to pay $100 restitution.

(Signature)
G.J. JACKSON
Senior Sergeant

B.J. W......... J.P. (Mag. Ct.)

IN THE DISTRICT COURTHOLEN

AT BRISBANE QUEENSLAND ON APPEAL FROM JUSTICES
NO. 384 of 1995

Shane James YULE (Appellant)
v.

McLEAN and HOLZENBERGER (Respondent)

This and the preceding 2 pages comprise the exhibit marked with the letter ‘A’ referred to in the
Avvidavit of Geoffrey John JACKSON sworn before me this 29th day of November, 1995.