R v Bleisner

[1996] QCA 500

COURT OF APPEAL

[1996] QCA 500

PINCUS JA
THOMAS J

DOWSETT J

CA No 435 of 1996
THE QUEEN
v.

TERRENCE JAMES BLEISNER Applicant

BRISBANE
..DATE 13/11/96
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PINCUS JA: This is an application for leave to appeal against
sentence. The applicant, who was born on 15 December 1973, was
convicted in the District Court on pleas of guilty of two
offences of breaking, entering and stealing which were committed
in November and December 1995.

The first and more serious offence related to items including jewellery which had been deposited with a company in anticipation of an auction. The premises in which the property was deposited were, of course, secured. A hole was cut in the rear fence of the property, a rear door was forced open and a considerable amount of property was taken; the value was in excess of $50,000.

Shortly after, by some good work on the part of the police, it was ascertained that the applicant was a party to the offence. The way in which this was discovered was by a police operative paying $1,250 for a substantial amount of the jewellery. The property recovered was worth nearly $30,000 and there was outstanding property worth about $23,000.

The contentions which were placed before the Court below in respect of the applicant's involvement in this offence were to the effect that he was concerned in it with another young person called Rinebarger and that an older man, Hill, had incited them, or induced them, to take part and that the applicant's role was less than that of Hill and Rinebarger. It was also said on his behalf that he had only got out of it the sum of $1,250 which was paid by the police operative.

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The second offence was one committed in the following month,
December 1995, when the applicant and a co-offender broke into a

property and stole two leather jackets and a motor cycle helmet.

Some damage was done in the amount of $249, but the property

stolen was recovered.

Now, Mrs McGinness, who appears for the applicant, complains of the way in which the Judge dealt with the matter. His Honour, in respect of each count, ordered three years probation and 100 hours community service. That is, there was 100 hours in relation to each count. The Judge also ordered compensation in the sum of $7,764.48 to be paid in instalments over a period of three years and made a pecuniary penalty order in the sum of $1,250.

The main complaint made by Ms McGinness in respect of the sentence had to do with the amount of compensation. The evidence was that the applicant was unemployed at the time when he came before the Court and his success in obtaining employment had been rather limited. Mrs McGinness suggested that the likely result of his not being able to pay (and she suggested he would not be able to pay) was that he would become liable for the default penalty which was 12 months.

A further complaint made by Ms McGinness was that, on one interpretation of the Judge's order, each instalment of compensation, (there were to be three instalments over three years) carried a separate penalty, or a separate default penalty of 12 months. I must say it is not very clear to me whether that is so.

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Lastly, Ms McGinness complained that the Judge imposed too harsh
a sentence when one compares the outcome which this applicant
had with that of his co-offender Rinebarger. Rinebarger came
before another Judge subsequently and his sentence consisted in
an order to perform 120 hours community service and to pay $40
compensation within a period of one month.

The applicant in the present case has a criminal record, but as Ms McGinness points out, the convictions were subsequent to the commission of the offences with which we are concerned. There is, in his record, a breach of a fine option order imposed in relation to a traffic offence. Secondly, and more importantly, there is a conviction, in May 1996, of two charges of supplying a dangerous drug in October 1995. In respect of those charges fines were imposed and there was an order for a small pecuniary penalty.

I have some sympathy with the view the Judge took of the matter, which was, in substance, that the appropriate and fair course was not to send the applicant, who is a young man, to gaol, but to require that he pay one-third of the value of the property lost and pay it within a period of three years.

However, having listened to the submissions made by counsel, having considered what seems to me to be the substantial likelihood that the applicant will be unable to make the payments ordered and having regard to the lenient treatment handed out to the co-offender, Rinebarger, it appears that we should alleviate the penalty imposed upon the applicant. It is true, as has been pointed out, that Rinebarger is a younger 131196 T4/DR17 M/T COA283/96

person and it is also correct that his sentence did not include any allowance for the other, lesser, break and enter of which this applicant was convicted. Nevertheless, there is some reason to be concerned about the discrepancy between the compensation order against Rinebarger and that which was made against this applicant. Another aspect of the matter which has troubled me is that the default penalty of 12 months seems rather heavy, particularly when one has regard to the matter which I have mentioned, that there is no certainty, that with the financial resources which the applicant is likely to acquire, he will be able to pay the sum of $7,764.48 which he is required to pay.

The orders which I would therefore propose are as follows:

(1) Application for leave to appeal granted.

(2) Appeal allowed in part.

(3) I would order that the order for community service for 100 hours apply only to Count 1 and that the order for community service for 100 hours in respect of Count 2 be set aside.

(It has been pointed out by Mrs McGinness that the orders for community service are said to be concurrent. It is not clear to me what the implications of that are, but in any event it seems to me that 100 hours community service in respect of Count 1 is sufficient)

(4)That the amount of the compensation order be reduced to
$2,400 payable by instalments of $800 a year, and that
the payment of that sum be part of and a condition of

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the probation order, without any order for
imprisonment for failure to pay.

(5)I would order that the amount of compensation paid, $2,400, be paid to the Sheriff who shall distribute it to the recipients and in the proportions indicated by the sum set out in the order made by Judge Howell. The compensation ordered will relate to Count 1 only. There will be no compensation order in respect of Count 2.

Ms McGinness, it is not absolutely clear to me whether section 95 covers this because we are not making it a probation order, we are varying it. But nevertheless for the sake of certainty it is probably better that you treat section 95 as applicable, or that we treat it as applicable, that you explain to the applicant what is involved in this proposed order otherwise we might be in breach of section 95. When can you do that?

MS McGINNES: We could do that within 24 hours because last time we tried to contact him during the day we were not able to contact him till after 6 o'clock, so we may not be able to contact him this afternoon, is what I am saying. We might have to do it tonight.
PINCUS JA: Will you advise the Registrar when that has been done and advise the Registrar of his consent, assuming he does consent. If he does not consent of course the matter will have to be reconsidered.
MS McGINNESS: Yes, Your Honour. We will advise of his consent.
PINCUS JA: Then assuming that he does consent and that the advice comes through to the Court then we can formally make the order at that stage and will be satisfied as far as section 95 is concerned. Of course, we have not interfered with the pecuniary penalty order.
MS McGINNESS: No, Your Honour.
PINCUS JA: Is there any comment you want to make on the proposed form of order, Mr Campbell?

MR CAMPBELL: No, Your Honour.

THOMAS J: I agree.
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DOWSETT J: I also agree.

PINCUS JA: Those will be the orders, subject to obtaining information from Ms McGinness.

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