Johnston v Henderson

[2013] QDC 81

DISTRICT COURT OF QUEENSLAND

CITATION:

Johnston v Henderson [2013] QDC 81

PARTIES:

BRETT ANTHONY JOHNSTON
(Appellant)

v

DOUGLAS ANDREW HENDERSON
(Respondent)

FILE NO/S:

B1928/2012

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2012

JUDGE:

Reid DCJ

ORDER:

Appeal allowed.

Sentence varied by order that the appellant be imprisoned for a period of 12 months, wholly suspended, with an operational period of 2 years.

Appellant, within 1 month, pay to the Registrar the sum of $5000, such sum to be paid by the Registrar to the complainant, Service Stream Communications Pty Ltd at an address to be provided by the DPP as compensation for its loss of four excavation buckets and one hydraulic rock breaker. In default of such payment, the matter is referred to SPER.

CATCHWORDS:

Stealing simplicita – aggravated circumstance of value of stolen property exceeding $5000 not alleged – finding that value exceeded $5000 made – such finding irrelevant and inaccurate – original sentence set aside – compensation limited to $5000

CASES 

R v Tommekand [1996] 1 Qd R 564 followed
R v Ruddell [2005] QCA 346 distinguished
R v Ferrari  1997 QCA 73 considered

COUNSEL:

D MacKenzie for the appellant

S Francis for the respondent

SOLICITORS:

Swanson Lawyers for the appellant

Office of Director of Public Prosecutions for the respondent

Introduction

1. On 16 May 2012 the appellant pleaded guilty before a magistrate to one count of stealing pursuant to s 398 of the Criminal Code.  The offence carries a maximum penalty of five years imprisonment but on a summary conviction there is a jurisdictional limit of three years imprisonment.  The learned Magistrate imposed a sentence of 12 months imprisonment, with release on parole after serving two months.  A release date of 16 July 2012 was set.  He was also ordered to pay restitution of $12,000.

1. On 21 May 2012 the appellant was granted appeal bail, so has served five days of his sentence. 

Grounds

1. The appellant stole four excavator attachment buckets and a hydraulic rock breaker.  He was observed loading these items into a skip bin which was then lifted on to the back of his truck which he drove away.

1. The matter was listed for a summary trial but on the day of trial he pleaded guilty.  It was thus a late plea but nevertheless saved the Court time and some of the expenses of a trial.

1. The primary matter for consideration on the appeal arose because the learned Magistrate found the combined value of the five items stolen was $12,000.  The basis for that conclusion was that the complainant company incurred expenses of $18,548 replacing the items and the learned Magistrate was told by the police prosecutor that he had been informed that the attachments had a life of 10 to 15 years.  As the attachments were four and a half years old the learned Magistrate ascribed the value of $12,000 being almost 65 per cent of the new cost of…