R v Beattie

[1998] QCA 357

COURT OF APPEAL

[1998] QCA 357

THOMAS JA
SHEPHERDSON J
JONES J

No 264 of 1998

THE QUEEN

v.

TIMOTHY JAMES BEATTIE  Appellant

BRISBANE

..DATE 07/10/98

JUDGMENT

SHEPHERDSON J:   The applicant has sought leave to appeal against sentences imposed on him on 4 August 1998.  The circumstances leading to these sentences are as follows:

On 6 May 1997 the applicant appeared before a learned District Court Judge in Brisbane where he pleaded guilty to two charges of housebreaking, two charges of stealing and one charge of false pretences. 

These offences were committed between 2 November 1996 and on or about 11 November 1996.  His Honour did not record convictions and ordered that the applicant be released on probation, a probation order being made for two years. 

According to the transcript His Honour also ordered the applicant to pay within 12 months compensation (in two sums) totalling $997.50.  However other documents show the compensation totalled $1,062.50.  This is the amount mentioned in the probation order and appears to be incorrect. 

The applicant contravened, without reasonable excuse, a requirement of the probation order namely that he must report to and receive visits from an authorised officer as directed by the officer in that he failed to report to the Redcliffe Community Corrections office on 14th day of May 1998 as directed by an authorised officer.

On the complaint of an authorised Commission officer the applicant appeared on 4 August 1998 before the same learned District Court Judge to be dealt with for that breach. 
After a hearing on that day His Honour vacated the probation order and on each of the two housebreaking charges he sentenced the applicant to 12 months imprisonment and on each stealing charge and on the false pretence charge he sentenced him to nine months imprisonment, all sentences to be served concurrently.

The applicant claims the sentences are manifestly excessive.  Before I turn to the applicant's antecedents I note that the learned sentencing Judge had before him a Court report from a Community Corrections officer which said (inter alia):

"Mr Beattie last reported to the Redcliffe Community Corrections office on February 18, 1998.  Correspondence sent on March 30, 1998 directing him to report on April 15, 1998 was ignored.  An additional letter sent on May 7, 1998 directing him to report on May 14, 1998 was also ignored.  The telephone call was made to his residence on May 19, 1998 when the offender was directed to report that day.  Mr Beattie again ignored the direction and failed to report to Redcliffe Community Corrections office.

As Mr Beattie has been uncooperative towards his supervision and very tardy in payments of compensation it is respectfully recommended that he be dealt with under section 126(4) of The Penalties and Sentences Act 1992 namely re-sentence him for the original offence.

It is further respectfully recommended that a separate order be made for the payment of the balance of compensation."

The applicant was born on 16 April 1979.  He was 17 years old at the time of the offences.  He was charged jointly on a 17 count indictment with Phillip John Harris.  Five of these counts pertained to the applicant.  These five counts related to two episodes where the applicant accompanied Harris at two housebreakings.

After the first of these episodes property from this housebreaking was pawned at a Cash Converters store.  The property stolen during the second episode was recovered.  The applicant made admissions as to the offences.  He pleaded guilty and was dealt with on 6 May 1997.  In his sentencing comments on 4 August 1998 which were quite short His Honour said, and I quote:

"It is quite obvious that you have been doing nothing but thumb your nose at the system.  You have ignored the warnings you were given at the time you were sentenced originally for these matters.  On that occasion you were given the opportunity of non-custodial sentences.  You have breached both of those or at least you have breached the probation order.

I will focus on the probation order.  I intend to vacate the other order."

His Honour then went on to impose the sentences.  The applicant is now 19 years old.  Before this Court his counsel submits that although the original offences were serious the applicant's age and his previous history are such that an actual custodial penalty was not the only appropriate option even when having regard to his unsatisfactory compliance with the reporting conditions in the probation order.

His counsel seeks to have the sentences set aside and the applicant admitted to further probation with a compensation order.  It appears that as at 22 May 1998 the applicant had paid sums totalling $120 of the $997.50 which he was ordered to pay over 12 months.

The applicant's counsel makes a further submission that the applicant has not returned to serious criminal conduct since being placed on probation and to that extent the object of the probation order has been achieved. 

I am unable to accept the validity of this submission given that one requirement of the probation order is that the probationer must not commit another offence during the period of the order and this applicant's criminal history shows that after the probation order was made on 6 May 1997 he appeared in the Magistrates Court at Brisbane on 27 January 1998 when he was convicted and fined for an offence of behaving in a disorderly manner on 11 January 1998 and that he appeared in the Redcliffe Magistrates Court on 30 June 1998 for a breach of a fine option order imposed on 9 September 1997 in regard to providing liquor to a minor, that offence having been committed apparently in May 1997.

In my view, the learned sentencing Judge was entitled to take into account all relevant circumstances up to the time at which the applicant was sentenced on 4 August 1998, including the commission of any further offences since the probation order was made - see The Queen v. Gill [1986] 1 Queensland Reports 459.  Other matters mentioned by the applicant's counsel are the applicant's youth and the fact that his girlfriend is pregnant and expects to give birth to a child next year.

In this matter the applicant is a young offender who in effect and in reality was being sentenced on 4 August 1998 as a first offender.  I can understand the learned sentencing Judge taking the view that the applicant was in effect thumbing his nose but, in my respectful view, His Honour erred in failing to take into account the fact that he was really sentencing a youthful first offender. 

I would therefore set aside the sentences imposed. In lieu I would order that the application for leave to appeal be allowed and that the sentences imposed be set aside. In lieu I would order that on each of the offences the applicant be sentenced to four months imprisonment, such sentence to be suspended after he has served 64 days. I would declare such sentences to have commenced on 4 August 1998 and I would fix an operational period of one year from 4 August 1998 during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under section 146 of the Penalties and Sentences Act for the suspended sentence. I would record convictions for each offence.

THOMAS JA:  I agree.

JONES J:  I agree also.

THOMAS JA:  There are two matters that arise before I declare the order of the Court.  Firstly, are you sure that 65 days is the correct computation?

MR MEREDITH:  Sixty-four, Your Honour, if it is from the 4th - it is 65 days until today.  It is a question of whether he be released today or tomorrow.

SHEPHERDSON J:  I would amend that to 64 days.  I will alter the transcript when I get it.

THOMAS JA:  The other is whether there is any requirement that the applicant be advised of the consequences of committing an offence for which imprisonment may be imposed during the operational period.  Is there any requirement that it be explained to him?

MR LEASK:  I can undertake to do that, Your Honour.

THOMAS JA:  All right.

SHEPHERDSON J:  Well, if I could just interrupt.  It is, I think, general practice to tell a person who has got a suspended sentence of the provisions of 144 and warn them that if they commit anything punishable by imprisonment-----

THOMAS JA:  Well, the Court notes the applicant's counsel has undertaken to advise him of the consequences of re-offending.  The order of the Court will be that which has been proposed by Mr Justice Shepherdson.  We will resume at 2.15.

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