R v Brown

[1992] QCA 190

COURT OF APPEAL	[1992] QCA 190
PINCUS JA McPHERSON JA DAVIES JA
CA NO 32 OF 1992 THE QUEEN v. ELLIS JOHN GEORGE BROWN
BRISBANE ... DATE 12/6/1992

JUDGMENT offences for which he was sentenced was 18 years of age, was sentenced by a District Court Judge on 24 January 1992 upon three counts of unlawful use of a motor vehicle with a circumstance of aggravation, four counts of an unlawful use of a motor vehicle, two counts of arson and two of stealing to a total period of imprisonment of three years, i.e. he was sentenced to two years' imprisonment upon the three counts of unlawful use of a motor vehicle with a circumstance of aggravation, 12 months' imprisonment on the four counts of unlawful use of a motor vehicle, three years' imprisonment on the two counts of arson and six moths' imprisonment upon the two counts of stealing; all sentences to be served concurrently.

He had, in effect, no significant criminal history and he had been convicted of unlawful possession of a prohibited plant on 26 April 1991 and ordered to perform 40 hours of community service and he had also been convicted of unlawful use of a motor vehicle and given two years' probation by the Holland Park Magistrates Court in respect of an offence committed in July 1991. The offences, the subject of the present application were committed between 11 June and 5 July 1991 and it was quite rightly submitted that the offences for which the applicant was convicted and sentenced by the Holland Park Magistrate Court was one of a series of offences which included the offences the subject of the present application. He had, consequently, never been in jail prior to being sentenced for the current offences. The circumstances of the offences were that the applicant, for the most part in company with others, over the period I've indicated, took seven, or if one includes the car the subject of the other sentence, eight cars for the fun of it; deliberately drove one into a tree, pushed out the windscreen of a second, set fire to a further two in order to destroy fingerprints, although as he said, he usually wore socks to avoid leaving fingerprints. Others of the cars were damaged to varying degrees including pushing one over a mountain and he stole property out of the two or removed parts from them.

2

The learned sentencing Judge said, in the course of sentencing the applicant, that the community would be horrified if, in a case like this, it did not result in imprisonment. I agree with His Honour's remark in that respect. His Honour took into account in the applicant's favour the fact that the applicant volunteered his responsibility to the police and in fact assisted the police in respect of involvement of other offenders. He also took into account the fact that the applicant pleaded guilty and consequently saved expense and Court time and thereby showed his remorse.

His Honour also said that in the absence of the arson counts, he might have seen fit to impose a non-custodial penalty. The main argument before us for the applicant was that the sentence imposed by the learned sentencing Judge showed a lack of parity with the sentence imposed upon the co-offender, Pattett. His Honour stated that he was conscious of the need for parity and imposed a much heavier sentence in this case because, as he said, the co-accused was not convicted of arson, an offence which carried a maximum sentence of life imprisonment. We have had the advantage of seeing the sentencing remarks of the sentencing Judge in Pettet's case, an advantage which the learned sentencing Judge in this case did not have. It appears that Pettet was convicted of five offences of unlawful use of a motor vehicle, four with circumstances of aggravation; the circumstance of aggravation in one of those case being destruction of the vehicle by burning. 3

Pettet was also convicted of the offences of break and entering and stealing, offences of which the appellant in the present case was not convicted. Pettet was sentenced in the end to probation for three years and to 240 hours of community service. He was required by His Honour to submit to medical psychiatric or psychological treatment as considered necessary. In looking at His Honour's sentencing remarks in relation to Pattet, there does not seem to be any great compelling need for psychological care in the sense that the only evidence appeared to be of Pettet's immaturity, a quality which might not be uncommon in those who commit offences of this kind.

There does seem to be a lack of parity between the sentence in Pattet's case and the sentence in this case, because even if one leaves out the arson conviction in the present case, one is left with a two-year term of imprisonment in respect of the offences of unlawful use with circumstance of aggravation, much higher than in Pettet's case. Were it not for the apparent lack of parity with Pattet's case, I would be of the view that the sentence imposed in this case was within the range and I would not interfere. I would interfere only because to impose the sentence which the sentencing Judge did in the present case would result in a lack of parity with Pettet's case which, I think in the end, is a more serious ill than attempting to achieve what seems to me to be the better result in this case. 4

In my view the sentence imposed in Pettet's case was too low. I would therefore, in the present case, in lieu of the sentence which was imposed by the sentencing Judge impose a sentence of six months' imprisonment with a probation order on the usual terms requiring the applicant to be under the supervision of a community correctional officer for a period of two and a half years.

PINCUS JA: I agree

McPHERSON JA; I agree.

DAVIES JA: The order will be as I have indicated.

-----