MacDonald v Clarmont & Rokeby

[1997] QCA 117

COURT OF APPEAL

[1997] QCA 117

DAVIES JA
McPHERSON JA
MACKENZIE J

CA No 38 of 1997
CA No 48 of 1997

B A MACDONALD

v.

SAMUEL RAY CLARMONT   Applicants
and RODERICK RAY ROKEBY

BRISBANE

..DATE 15/04/97

JUDGMENT

DAVIES JA:  Each of the applicants pleaded guilty in the Magistrates Court at Lockhart River on 28 January last to the offence of breaking, entering and stealing a quantity of alcohol.  At the time these offences were committed, Clarmont was 24 years of age and Rokeby 25.  Each had been convicted of offences involving dishonesty on a number of occasions before but neither had previously been imprisoned.

Clarmont had in all four previous convictions for offences of dishonesty.  On 16 March 1992, he was convicted of unlawfully taking shop goods away and fined $120.  On 6 September 1994, he was convicted of stealing and fined $240, then on 27 February 1996, he was convicted of one offence of breaking, entering and stealing and one of breaking and entering a place with intent for which he was sentenced to 160 hours community service.

Rokeby's criminal history is more extensive.  It commences on
1 March 1989 when he was convicted of breaking and entering a place with intent for which he was discharged on entering into a recognisance.  In the same year, he was convicted of behaving in an indecent manner and fined.  Then, on 15 March 1993, he was convicted on two charges of breaking, entering and stealing and sentenced to 12 months probation.  On 4 January 1994, he was convicted of possessing a weapon without a licence for which he was fined and ordered to perform some community service.

On 6 October 1995, he was again convicted of breaking, entering and stealing and also on a separate offence of stealing, and on this occasion, he was fined $150.  And finally, on 27 August 1996, he was convicted of wilful and unlawful damage to property and fined $200.

The offence in the present case was committed by the applicant and two others.  It involved removing part of the roof of the canteen in the aboriginal community in which the offenders lived, and then stealing beer from freezers in the canteen.  A substantial quantity of alcohol was removed, both complainants had consumed a considerable amount of alcohol prior to the commission of this offence, they co-operated with police and entered pleas of guilty.  Both were in employment at the time of the commission of their offences.

Clarmont was sentenced to six months imprisonment suspended after one month with an operational period of 12 months, Rokeby was sentenced to six months imprisonment.  It was submitted on their behalf that both sentences were excessive.

It seems that the reasons why the learned Magistrate imposed custodial terms in each case were the previous criminal records of each of the offenders, the prevalence of offences of this kind in the community, and the effect their commission had on a community such as this.  His Worship thought that the penalties handed out by Courts had the effect that conduct of this kind would not be tolerated in such communities.

There is nothing in the record to indicate the prevalence of offences of this kind or its effect on the community but the respondent submitted that the learned Magistrate who visits this community would have some knowledge of these matters which this Court lacks.  There is, in my view, some substance in that submission.

No doubt in cases such as this a non-custodial sentence would have been, in each case, within the appropriate range; on the other hand, when one has regard to the previous records of each of the applicants, the sentences which were imposed were not, in my view, outside that range.  No criticism was made on behalf of either applicant about any lack of parity between their sentences even though the submissions made by
Mrs McGinness on behalf of Rokeby were perhaps more confidently made than those on behalf of Mr Clarmont.

Accordingly, in my view, in each case, the application for leave to appeal should be refused.

McPHERSON JA:  I agree.

MACKENZIE J:  I agree.

McPHERSON JA:  The applications are refused.  A warrant should issue for the arrest of Roderick Ray Rokeby.

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