R v Brodie

[1995] QCA 589

[1995] QCA 589

COURT OF APPEAL

MACROSSAN CJ FITZGERALD P PINCUS JA

CA No 369 of 1995
THE QUEEN
v.

JAMES ANTHONY BRODIE Applicant

BRISBANE
..DATE 15/11/95
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THE CHIEF JUSTICE: Mr Justice Pincus to deliver his reasons
first.

PINCUS JA: This is an application on behalf of J A Brodie who was sentenced in the District Court on 18 August last in respect of a number of offences. There were one burglary, three offences of house breaking, nine of breaking entering and stealing, two of breaking and entering with intent and

15 of stealing. All of the offences were committed at Atherton in North Queensland. Various terms of imprisonment were imposed, the longest being five years imprisonment for the burglary, and the second longest three years for each of the three house breaking offences. The Judge ordered that the applicant be eligible for parole from 5 August 1997. A date selected as being two years less 13 days, being a period of pre- sentence custody. The applicant was imprisoned for two months on 9 July 1995 for breaching a bail undertaking, and the sentences with which we are concerned are cumulative upon that sentence. Apart from that two month sentence, the subject sentences are the first ordered against the applicant. He is 19 years of age having been born on 12 April 1976. The offences in question were committed between August 1994 and July 1995 when the applicant was 18 and 19 years of age.

The offences were discovered when the police found some stolen items in the applicant's unit. They questioned him and he cooperated fully providing information which led to these convictions. And he took the police to places where property stolen by him was recovered. He was prosecuted on an ex officio 151195 T17/SF M/T COA95/353

indictment and of course he pleaded guilty.

The details of the offences need not be set out fully but some examples are necessary. According to a statement placed before the primary Judge with respect to the burglary the complainant and his wife were awoken by footsteps in their house, being those of the applicant at 1.30 a.m. They went to investigate and heard the back door close. The applicant told the police that he came into their house through that back door which was unlocked and he saw the complainants asleep in their bed and then looked for money. He took a wallet and a handbag and he fled when disturbed. He later discarded the wallet and the handbag and spent the money. The amount of cash taken was $120 and the handbag was recovered. As to the other offences, it has to be said that some of them involved relatively minor items or sums of money. Examples are, a Swiss Army knife said to be worth $24, $20 cash and $10 cash. Those are three of the stealing offences.

The most substantial theft to which a specific sum of money is attributed was of what is described as a portable communication radio worth $1200 taken from the Atherton Fire Station. The applicant told the police that he broke into the fire station looking for money. He took a tin of cash and that was recovered with its contents intact. He took the radio because he thought it might pick up police frequencies.

The value of what was called the outstanding property was said to be $6,388. That figure excludes it appears items which were stolen but recovered. The most significant of which seems to 151195 T17/SF M/T COA95/353

have been a lap top computer which presumably was of significant
value.
The Judge was told that the applicant's father died when he was
seven. His mother remarried. The applicant did not get on with
his mother or his step-father. At the age of 14 he was asked to
leave home, a request which the applicant thought was warranted.

He then worked for three years on cattle stations in the north. He fell into a pattern of hard drinking so the Judge was told,

because of the older men with whom he worked who had that habit.
He had a relationship with a woman in Hughenden and that broke
up, causing him to come back to Atherton where he had grown up.
He then spent money on drinking and taking drugs. After coming
back to Atherton he worked for a time as an apprentice carpenter
but during that period he was apprehended because of a fine he

had not paid, so the apprenticeship ended. He also worked

briefly as a tobacco picker.

All the offences in the applicant's record including the subject offences were committed between March 1994 shortly before he turned 18 and 6 July 1995 after he turned 19. So one is looking at a period of criminality by a person 18 and 19 years old. The period lasting for about 16 months. The first offence was a charge of unlawful use of a motor vehicle at Hughenden for which the applicant was placed on probation, ordered to do community service and to pay $7,000 restitution. Then there were offences in July, August and September 1994 including some of the subject offences and also 11 stealing charges, and they were dealt with in two batches in the Atherton Magistrates Court. The penalties imposed were in summary a fine of $450, orders for compensation 151195 T17/SF M/T COA95/353

totalling $3,300, 12 months probation and 100 hours community
service.

The Judge was told by the Prosecutor and it was not disputed that the applicant's performance in respect to both community service and probation was unsatisfactory.

The primary Judge referred to the applicant's unfortunate background, to his involvement in drugs and excessive consumption of alcohol and described his activities as practically constituting "a one-man crime-wave". His Honour mentioned that most if not all of the offences were committed while the applicant was on probation and community service and that appears to be correct. The view the Judge took was that the applicant had been given chances before and then warned what would happen to him if he breached the orders then made. His Honour also noted that a number of offences would not have been detected or reported if the applicant had not told the police about them. This was a reference to the fact that as the Prosecutor explained, some of the complainants were not aware an offence had been committed until the property stolen was returned to them.

If one considers the whole period of fairly consistent offending from about when the applicant turned 18 until the police found out about his activities, some 16 months later, one finds over 40 offences starting with unlawful use of a motor vehicle as I have mentioned. But the applicant has been sentenced in the Magistrates Court for some of these offences before he came to 151195 T17/SF M/T COA95/353

the District Court and he is of course not liable to be punished
for them again.

One of the points which, it appears to me, favours the respondent here is that on three occasions during the period of 16 months I have mentioned, the applicant was brought before the Magistrates Court and the penalties imposed on those occasions did not include imprisonment. They did not however deter him from committing further offences.

The trouble which I have had with the longest sentence the Judge imposed, of five years, is that it seems to be somewhat beyond the range which appears from the very useful schedule which the Crown has given us and that it seems not to give any considerable weight to the applicant's youth, to the fact that before committing these offences he had not previously been sentenced to imprisonment and to his extensive cooperation with the police.

I also note that the position of the prosecution below, finally, was that the proper range was three to four years. I am inclined to think that the Prosecutor's submission below was correct, and that a proper sentence would have been in that range. I would, for myself, reduce the head sentence for burglary to three and a half years and I would also reduce the period which the applicant must serve before being eligible for consideration for parole from the period which the Judge fixed to 18 months.

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The Judge took the view that he should fix the eligibility for
parole as a date rather than as a period, and it seems to me
correct that that should happen. I would favour bringing back
by six months the date which the Judge fixed, from 5 August
1997. That takes it to 5 February 1997.

So, in short, I would reduce the longest sentence, that of five years, to three and a half years and make the applicant eligible for parole on 5 February 1997.

THE CHIEF JUSTICE: I agree with the reasons and with the order proposed.

THE PRESIDENT: I agree.

THE CHIEF JUSTICE: That will be the order of the Court.

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