Keating v Hodges

[1992] QCA 177

[1992] QCA 177

COURT OF APPEAL

FITZGERALD P
DAVIES JA
DEMACK J

CA NO. 68 OF 1992

GARY JOHN KEATING

v.

TROY ANTHONY HODGES

BRISBANE

... DATE 9/6/92

MR RAFTER:  I'm appearing now in lieu of Mr Herbert, Your Honours.  Apparently Mr Hodges has given instructions to consent to a probation order as being part of an order of the Court if the Court were so inclined to order probation.

THE PRESIDENT:  I'm a little troubled by the 'apparently'.  I mean, is that clear or not?

MR RAFTER:  I'm sorry, perhaps I shouldn't have added that word, no.  He has instructed my instructing solicitor of that specifically.

JUDGMENT
THE PRESIDENT:  Yes, very well, thank you.  The applicant has applied for leave to appeal against sentence in respect of a sentence imposed upon him in the Magistrates Court at Southport on 4 February 1992 when he pleaded guilty to the unlawful use of a motor vehicle and dangerous driving on 20 January 1992.  He was sentenced to 12 months' imprisonment and his driver's licence was disqualified for 24 months on the first charge and his driver's licence was disqualified for nine months on the second charge.

Although he is only 17 the applicant has a bad criminal history which includes 10 previous convictions for unlawful use of a motor vehicle.  The offences in question occurred when the applicant was unlawfully using a motor vehicle in an attempt to evade the police.  A chase took place on the Pacific Highway at speeds up to 160 km/h in the course of which another vehicle had to take sharp evasive action.

The applicant's first criminal conviction occurred when he was only 13 years of age and involved offences of breaking and entering dwelling houses with intent, entering dwelling houses with intent and stealing.  Similar offences occurred subsequently, along with the unlawful use of motor vehicles, the wilful destruction of property, obscene language, resisting police and assaulting police.  On a number of occasions the applicant was placed under the care and control of the Director of Family Services but he had not previously been sentenced to imprisonment except in default of compliance with some other form of punishment ordered.

It is an important factor in favour of the applicant that during the years 1990 and 1991 his misconduct, at least in so far as offences of dishonesty were concerned, seems to have diminished substantially and his only offences involved obscene language and one occasion of resisting and one occasion of assaulting police.

Non-custodial sentencing options have not yet proved to be a deterrent to the applicant and the presently material offences are serous.  For the applicant however, reliance is placed upon his youth and it is submitted that he should have been ordered to serve a relatively short period of imprisonment followed by a lengthy period of probation.

In my opinion, in all the circumstances the sentence of imprisonment which was imposed upon the applicant was manifestly excessive and should be reduced.  I would allow the application and the leave and substitute a period of six months' imprisonment followed by a period of two years probation.

DAVIES JA:  I agree

DEMACK J:  I agree.

THE PRESIDENT:  I understand Mr Rafter, there is a formal appeal against conviction in the papers here, is that correct?

MR RAFTER:  That's not being pursued, Your Honours.

THE PRESIDENT:  That's not being pursued.  Very well, the appeal against conviction is dismissed. Thank you.

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