Peatling v O'Donnell

[1997] QCA 214

COURT OF APPEAL

[1997] QCA 214

DEMACK J
MACKENZIE J

HELMAN J

CA No 173 of 1997
GLENN ROBERT PEATLING
v.

GRAHAM O'DONNELL

BRISBANE

..DATE 20/06/97

JUDGMENT
200697 T26/FLC28 M/T COA134/97

MACKENZIE J: The applicant has appealed against a sentence of 18 months cumulative imprisonment imposed upon him in the Maroochydore Magistrates Court for unlawfully using a motor vehicle. On 12 February 1997 the owner of the vehicle had incautiously left it outside a vet's premises, unlocked with the key in the ignition, for a few minutes. Shortly afterwards it was involved in a collision in which it was written off causing a loss of $4,650 to the owner.

The applicant was found behind the wheel after the collision. He was convicted of this offence of unlawfully using a motor vehicle on 29 April 1997. He had told the police, according to the QP9 form, that he had been assaulted, was drunk, and had no memory of taking the car. Between the time of the offence and the applicant's plea of guilty to it he was arrested on 2 March 1997 for possession of cannabis and on 18 March 1997 was arrested for stealing two women's purses and money from one of them in an hotel at Coolum.

These offences were dealt with at the same time as the offence of unlawfully using a motor vehicle in respect of which the appeal has been brought. There is no appeal against them and they are mentioned only as part of the total picture. More directly relevant are convictions in the Brisbane Magistrates Court on 17 April 1997 of two charges of entering a dwelling house with intent and possession of property suspected of being unlawfully obtained. Those were committed on 2 April 1997. They were also committed while he was on bail for the offence with which we are concerned today.

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He was sentenced, effectively, on those two charges to six months imprisonment on 17 April 1997. The applicant's complaint is that when the Magistrate dealt with him on 29 April 1997 for unlawfully using a motor vehicle he made the sentence of 18 months cumulative on the six months imposed in Brisbane Magistrates Court on 17 April 1997.

I should mention that in the Maroochydore Magistrates record of conviction there is an error in recording of the date of conviction in the Brisbane Magistrates Court. It was clearly the intention to make the sentence cumulative on the Brisbane Magistrates Court sentences because the imprisonment order refers to the period of imprisonment previously imposed by the Magistrates Court, Brisbane. However it says that the date of imposition of imprisonment was 2 April 1997 whereas the only event to which the order can relate is the conviction on 17 April 1997 for offences committed on 2 April 1997. We should correct the Magistrate's order in that regard in any event if the appeal fails.

The applicant submitted in written submissions that the Magistrate had failed to consider other options and that the 18 months sentence should have been made concurrent with sentences of six months imposed in Brisbane. It is true that the offences for which he was sentenced in Brisbane were committed after the unlawfully using a motor vehicle even though they were dealt with in reverse order about a fortnight apart.

However, in my view the Magistrate at Maroochydore was entitled to have regard to the fact that the sentence imposed in Brisbane

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in all probability would have been cumulative on the sentence for unlawfully using a motor vehicle had it been imposed in proper temporal sequence.

A cumulative sentence would have been appropriate because the offences in Brisbane were committed while the applicant was on bail. The fact that it turned out that the sentence for the Brisbane offences was imposed before the sentence in Maroochydore, does not affect the correctness in principle of imposing a cumulative sentence.

The only question remaining is whether 18 months cumulative is manifestly excessive. The applicant has a long and persistent history of dishonesty commencing when he was 12 years of age. He is now 38. There are over 60 offences of dishonesty, 16 drug offences and a variety of other less relevant offences. He has served a number of terms of imprisonment.

Attached to his material, there were a number of sentences, mostly in the District Court and Magistrates Court. They relate to a variety of fact situations, none of which are directly comparable to the present offence and are not, in my view, definitive. In the applicant's circumstances, a sentence of 18 months cumulative with a non-parole period of 12 months is not, in my view, manifestly excessive. The appeal is without merit.

For technical reasons to correct the slip in the Magistrate's order, I would give leave to appeal and order that the order of the Magistrate be varied, only to the extent that in the imprisonment order of 29 April 1997, the date 2/4/1997 be

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deleted wherever it appears, and in lieu thereof, the date

17/4/1997 be inserted; otherwise, the appeal will be dismissed.

DEMACK J: I agree.

HELMAN J: I agree.

DEMACK J: The orders of the Court will be those proposed by Mr

Justice Mackenzie.

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