R v Bird

[2004] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:	R v Bird [2004] QCA 196
PARTIES:	R v BIRD, Trevor (applicant)
FILE NO/S:	CA No 147 of 2004 DC No 903 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	8 June 2004
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2004
JUDGES:	de Jersey CJ, Williams and Jerrard JJA agreeing Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to the offence of stealing as a servant – whether the sentence is manifestly excessive – whether the learned sentencing judge was influenced by the applicant having committed a previous similar offence
R v Aston (No 2) [1991] 1 Qd R 375
COUNSEL:	A J Kimmins for the applicant D L Meredith for the respondent
SOLICITORS:	Ryan and Bosscher for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant pleaded guilty to the offence of stealing as a servant. On the 9th of April 2003, while employed by Woolworths and acting in the capacity of Night Fill Manager, he stole $1,000.

The commission of the offence was recorded on security camera. Confronted with the allegation, he denied committing the offence. The day before he was sentenced, on 27th May 2004, he repaid the sum to Woolworths. He was sentenced to nine months' imprisonment, suspended after a period of 10 weeks, for an operational period of 18 months. He seeks leave to appeal on the ground that that sentence is manifestly excessive.

The learned sentencing judge was particularly and understandably influenced by the circumstance that, on the 17th of January 1997, the applicant had committed a similar offence, then stealing the sum of $100 from his employer.

The commission of that offence also was recorded on security camera. Again, confronted with the allegation, the applicant then denied it, although he did plead guilty before the magistrate who did not record a conviction but fined him the sum of $100.

Before the learned judge, the Crown Prosecutor submitted that "a community based order all the way through to a short term of imprisonment," while submitting that any imprisonment should, however, be wholly suspended.

both a term of imprisonment or a community based order were
within range and requested the recording of a conviction.

Counsel for the applicant submitted before us that the learned judge erred in rejecting the applicant's counsel's description of the offence as having been committed on the spur of the moment. His Honour referred to "a certain planning and a number of acts done that were necessary in the hope of covering tracks". That view was reasonably open.

After removing the contents of the requisite capsule, the applicant sorted those contents out which he was not required to do, then placed the cash on a bench, then secured a piece of paper from a filing cabinet which he then endeavoured to use to conceal his removal of the cash from the bench into his pocket. When confronted with the offence, he denied it.

I think the combination of those circumstances warranted his
Honour's characterisation of the nature of the offence.

Mr Kimmins submitted that his Honour gave too much to the previous offence. But the previous offence, notwithstanding it was committed six years before, was very relevant because of the similarity of circumstances. In terms adopted by Cooper J in R v Aston (No 2) [1991] 1 Qd R 375 at 381, it illuminated the applicant's moral culpability when committing the later offence and bore on the need for deterrence. It was not a case, here, of, in effect, further sentencing the applicant for the prior offence.

The circumstance that the applicant had previously offended similarly, albeit that occurred six years before, in my view meant the learned judge was plainly entitled to impose a penalty requiring the applicant to serve an actual term of imprisonment.

Bearing in mind the maturity of his years - he was 51 years old when he committed the offence - and the gravity of this particular offence warranting special attention to the need for deterrence, I would refuse the application.

WILLIAMS JA: I would add to what has been said by the Chief day, 10 April 2003.

Justice, that the security camera indicated that the activity
resulting in the taking of $1,000 commenced at 7.56 p.m. on 9
April 2003. The applicant was spoken to by the Regional

On that occasion, the applicant denied the allegations made within range. I agree with what the Chief Justice has said and the application should be refused.

against him. Given that, the repayment of the $1,000 the day
before he was sentenced some 13 days later does not carry with
it any significant indication of remorse; but as the learned
sentencing judge said, "there can be some moderate allowance
for remorse."

JERRARD JA: I agree.

THE CHIEF JUSTICE: The application is refused.

-----