R v Bohan

[2000] QCA 216

[2000] QCA 216

COURT OF APPEAL

McMURDO P
WHITE J
DUTNEY J

CA No 61 of 2000

THE QUEEN

v.

BENJAMIN ROY BOHAN  Applicant

BRISBANE

..DATE 01/06/2000

JUDGMENT

THE PRESIDENT:  Justice White will deliver her reasons first.

WHITE J:  The applicant seeks leave to appeal against the sentences imposed upon him in the District Court at Brisbane on 14 March 2000 on the ground that they were manifestly excessive when compared with the sentences imposed on his co-accused and another offender. 

The applicant pleaded guilty to one count of fraud for which he was sentenced to a term of imprisonment of two and a half years, two counts of stealing as a servant for which he was sentenced to terms of imprisonment of nine and 12 months respectively, and one count of unlawful possession of a motor vehicle for which he was sentenced to a period of imprisonment of 18 months. 

The sentences were to be served concurrently and to be suspended after serving six months with an operational period of three years.  No time was spent in presentence custody.

The applicant was 20 years at the time of committing the offences.  He was employed as an apprentice motor mechanic at Southside Ford where he had been for three and a half years since leaving school.  He had six months of apprenticeship then remaining when charged with these offences.

A co-worker at Southside Ford named Nardone, then aged 29 years, approached the applicant and told him that he had been unable to sell his, that is Nardone's, car and needed someone to help him dispose of it so that he could make a fraudulent claim on the insurer.  He needed the money to pay for his forthcoming wedding. 

He arranged with the applicant that the car would be parked at a certain place at Burleigh and gave the applicant a key to the car.  He offered no payment to the applicant for performing this service.  The learned sentencing Judge was told by the prosecutor that Nardone did not really care how the car was disposed of so long, it might be assumed, as it was not traced back to him.

The applicant enlisted the assistance of his co-accused, Muir, to drive him to Burleigh.  Muir was unknown to Nardone.  The applicant returned to Brisbane in tandem with Muir and stored the car at Muir's residence.  Muir was the de facto brother-in-law of the applicant being in a long term relationship with the applicant's sister with whom he had two children.  Muir was then aged about 25.  Nardone was paid at $14,650 by his insurer on 2 April 1999. 

The applicant wished to modify the car and to that end stole a nose cone from his employer, the subject of count 2, and subsequently some other equipment for modifying the engine, the subject of count 3, all valued at just under $5,000.  Parts of a wreck appear to have been used in the
modifications to the vehicle.  Some attempt had been made to obscure its identification numbers for which the applicant did not take responsibility below.  There was suggestion made by the prosecutor taken from the applicant's interview that Muir was to get the car and the applicant was to be paid $300 and to practise his trade working on the car. 

The principal offence came to light via an inquiry at the applicant's place of employment and the police attended at Muir's residence in the middle of July 1999 where the vehicle was found substantially disassembled.  The items, the subject of counts 2 and 3 were recovered undamaged and restored to the applicant's former employer.  After the offences were discovered Nardone made full restitution to the insurance company.  He pleaded guilty to a charge of dishonestly obtaining money, the same charge faced by Muir and the applicant as count 1.

Nardone was sentenced by Acting District Court Judge Griffin SC on 21 December 1999 to a term of imprisonment of two and a half years wholly suspended with an operational period of three years.  He had no previous convictions. 

Muir, as mentioned, was 25 years at the time of the offence and had a criminal history which included previous offences of dishonesty albeit not serious, one charge of break, enter and steal for which he was sentenced in 1991 to two months' imprisonment and two years' probation. 

Of greater seriousness was a conviction in this Court on
15 February 1999 of two counts of possession of drugs, LSD and cannabis, for which he was sentenced to wholly suspended sentences of three months and 12 months with an operational period of two years.  Thus Muir committed the fraud offence in respect of the car less than two weeks into his suspended sentence.

Muir was charged with only one offence in the event, that is, fraud on the insurance company.  The Crown entered a nolle prosequi with respect to a charge of receiving the goods stolen from Southside Ford.  And despite the car remaining in his yard for the whole period until discovered by the police the prosecution also entered a nolle prosequi in respect of the possession of the motor vehicle.  Muir was sentenced to two and half years' imprisonment to be suspended after six months with an operational period of three years. 

Below there was no reliance on the disparity in ages between the applicant and the two other men, said by the applicant's counsel "on the evidence".  Mr Johnson, for the applicant, submits that it was not a concession that was properly made when the whole picture is considered.  Certainly it cannot be ignored that Nardone was almost 10 years older than the applicant who was an apprentice where they both worked and Muir, the person at whose home the car was being worked on, was, it seems, to obtain the vehicle.

The question is whether the sentences which were imposed were outside the range of a sound sentencing discretion when regard is had to the sentences imposed on Muir and Nardone and on the applicant's own circumstances. 

The crimes were serious.  Two and half years for the fraud offence was proposed by the prosecutor below.  It was submitted to be at the top of the range by defence counsel. The learned sentencing Judge made reference to the greater number of charges against the applicant than Muir and the lengthy period during which the applicant had possession of the car.

In my view his Honour gave too much emphasis to these matters and failed to consider adequately or at all the personal circumstances of the applicant, that he had no previous convictions of any kind, that he had been in constant employment since school, and that he had been penalised in that he had lost his job and there would be a possibility that he would be unable to complete his training as a motor mechanic by placement with another employer with future economic detriment.  At the time of sentence he was employed as a labourer.

The learned sentencing Judge failed, in my view, to take appropriate account of the applicant's youth and that he was not the instigator of the first crime which led to the others.  This suggested that supervision and guidance was called for rather than to place him in an adult prison and then to be released without supervision. 

The case of Larsen, appeal number 345 of 1991, an Attorney General's appeal, suggests that in a case of this kind with a commercial motive a custodial term would be the order of the day but the Court did not interfere with a noncustodial sentence relying on particular features of the case. 

Another feature of the sentence imposed below, in my view which was too onerous, was an operational period of three years.  The seriousness of Muir's situation with a not inconsiderable criminal record suggested a term of imprisonment some actually to be served was appropriate for him but it did not dictate, in my view, that the same approach should be taken to the applicant.  Neither was it necessary to impose the same head sentence as Nardone, the instigator of the insurance fraud.  It follows that, in my view, the sentences imposed below were manifestly excessive and outside the range of a sound sentencing discretion in respect to this applicant. 

Given the seriousness of the offences, although ultimately without consequence to the complainants in economic terms, an intensive correction order would, in my view, have been an appropriate penalty combining as it could have community service and supervision.  However, the applicant has already served approximately two and a half months in prison.  If he is prepared to undergo a period of probation that now seems to me to be an appropriate outcome although it should be emphasised that it is not the sentence which would have been imposed had he not already served that period in custody.

I would propose the following orders:

Grant leave to appeal.

Allow the appeal.

Set aside the sentences imposed below and in lieu thereof impose the following sentence in respect of each offence.

And I would add as an aside, subject to the filing of a consent in the Court of Appeal Registry to the probation proposed within 72 hours:

Impose a period of 18 months probation upon the applicant in respect of each of the counts for which he was sentenced in the Court below.

Record a conviction.

THE PRESIDENT:  I agree.

DUTNEY J:  I agree.

THE PRESIDENT:  The orders are as set out by Justice White.

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