R v Bundi

[1994] QCA 4

IN THE COURT OF APPEAL  [1994] QCA 004

SUPREME COURT OF QUEENSLAND
  C.A.  No. 357 of 1994

Before     The President
          Mr Justice McPherson
          Justice White

[R. v. Bundi]

BETWEEN:
  T H E  Q U E E N

v.

JOHN GABRIEL BUNDI  
  (Respondent)

THE HONOURABLE ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

The President

Mr Justice McPherson

Justice White

Judgment delivered 10/02/94

Judgment of the Court

APPEAL ALLOWED. SET ASIDE ORDERS BELOW IN MAGISTRATES COURT ON 07.09.93. SUBSTITUTE A SENTENCE OF SIX  MONTHS IMPRISONMENT ON EACH CHARGE AND ORDER A CONVICTION BE RECORDED FOR EACH OFFENCE.

CATCHWORDS:CRIMINAL LAW - Sentencing - repetition of minor offences - persistent and incorrigible offender - alcoholic - current offences to be viewed in context of other behaviour.

Counsel:Mr. J. Hunter for the Crown

Mr. T. Carmody for the respondent

Solicitors:     Director of Prosecutions for the Crown
               Legal Aid Office for the respondent

Hearing Date:   08/02/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered  10/03/94

The Attorney-General has appealed against sentences imposed upon John Gabriel Bundi in the Magistrates Court at Cunnamulla on 7 September 1993. The respondent pleaded guilty to one charge of receiving on 17 July 1993 and one of stealing on 5 August 1993.  On the receiving count, no conviction was recorded and the respondent was placed on probation for two years with a special condition that he undertake medical, psychiatric or psychological treatment as ordered by an authorised officer of the Corrective Services Commission. On the stealing charge, he was granted an absolute discharge.
     The offences were not particularly serious. On 17 July 1993, the respondent was found in possession of foodstuffs, clothing and four swords stolen earlier that morning from a dwelling at Inala which had been broken and entered.  On 5 August 1993, the respondent stole a bottle of vinegar from a general grocery store at Cunnamulla, in the mistaken belief that the bottle contained menthylated spirits.  According to submissions made on his behalf, the respondent is an alcoholic.    One can sympathise with his plight. However the course adopted by the Magistrate was entirely inappropriate.
     The respondent was born on 23 July 1959 and is 34 years of age. He has been a persistent offender since the middle of 1975. His criminal history sheets extend to 12 pages, including 47 convictions for offences of dishonesty. The present offence of receiving was committed whilst the respondent was on parole and the offence of stealing whilst he was on parole and on bail.  He had previously been placed on probation in September 1977 and July 1989 and, in each case, he reoffended shortly afterwards. Further, he had been sentenced to imprisonment  on a number of occasions, including sentences of 2 years, 21 months and 15 months.
     His counsel submitted that the responded "is more appropriately described as a social nuisance rather than an arrogant recidivist", but accepted that he "is clearly a persistent and almost incorrigible offender."
     The Magistrate seems to have focused upon the offences for which the respondent was sentenced on 7 September 1993, but those offences cannot be viewed in isolation but must be seen in the context of the respondent's past behaviour.  It is apparent that it was inappropriate not to record a conviction and there was no evident purpose in placing the respondent on probation.
     A term of imprisonment was called for. Having regard to the circumstances that this is an appeal by the Attorney-General and that the sentencing Magistrate obviously considered that the maximum leniency should be extended to the respondent, the term of imprisonment is set at 6 months.
     The appeal against the sentences imposed on the respondent is therefore allowed and the sentences imposed on 7 September 1993 are set aside. In lieu, the appellant is sentenced to imprisonment for 6 months on each charge, to be served concurrently. A conviction is recorded in respect of each offence.