R v Campbell & McSkimming - [1999] QCA 291

99.291

COURT OF APPEAL
de JERSEY CJ
BYRNE J
WHITE J

CA No 127 of 1999 CA No 141 of 1999

THE QUEEN
v.
STUART JAMES CAMPBELL and

ANTHONY JOHN MCSKIMMING Applicants

BRISBANE
..DATE 28/07/99
280799 T13/JT16 M/T COA169/99
THE CHIEF JUSTICE: The applicant, Campbell, a 34-year-
old man, and the applicant, McSkimming, 43 years old,
were jointly involved in the commission of a series of
offences of dishonesty. Each was sentenced to four
years imprisonment with parole eligibility recommended
after 18 months.

They separately seek leave to appeal on the ground that the sentences are manifestly excessive. The offences involve boats and trailers and related equipment and some shoplifting. Campbell committed more offences than McSkimming.

The offences committed by Campbell were one of breaking, entering and stealing, one of unlawful use of a vehicle with a circumstance of aggravation, two of unlawful possession of a vessel, four unlawful possession of a motor vehicle with a circumstance of aggravation, six stealing, one receiving and one bringing stolen goods into Queensland.

McSkimming's offences were one of unlawful use of a motor vehicle with a circumstance of aggravation, two unlawful possession of a vessel, three unlawful possession of a motor vehicle with a circumstance of aggravation, two bringing stolen goods into Queensland and two of fraud.

On my calculation the property involved was worth about
$35,000. Some of the loss was covered by insurance but
280799 T13/JT16 M/T COA169/99
for complete restitution Campbell would have to pay an
additional $5,508.97 and McSkimming an additional
$10,222.17.

The offences occurred over a period. In the case of McSkimming, from February to June 1988, and in the case of Campbell, June 1998. The younger applicant, Campbell, had a substantially more serious prior criminal history than McSkimming and had previously been imprisoned.

Campbell had convictions for stealing in 1982, 1983 and 1984, possession of stolen property in 1989 and 1996 and stealing in 1995. He had been in prison twice. McSkimming on the other hand had convictions for breaking, entering and stealing in 1972 for which he was given 12 months probation, stealing in 1974 and false pretences in 1974 and stealing in 1982.

The learned judge in his sentencing remarks emphasised
that the dishonesty occurred over a period and the need
for deterrence. He said with relation to the offences:

"They have extended over a period of time. They were

carefully planned and carefully carried out. It is
not as if this was an opportunity theft or anything
like that ... I have to deter you both from
committing this or any other criminal ... offences
... and I hope by the sentence I impose today to
deter others from committing these offences."

The parole recommendations plainly enough reflected the
pleas of guilty. To my mind the four year term of
280799 T13/JT16 M/T COA169/99
imprisonment imposed in respect of these offences fell
comfortably within the relevant range.

For offenders of mature age with prior convictions for dishonesty, having committed multiple offences over a period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Campbell & McSkimming

Details

AGLC: R v Campbell and McSkimming [1999] QCA 291
Case: [1999] QCA 291
Decision Date: 28/07/1999

CaseChat Overview and Summary

The applicants, Stuart James Campbell and Anthony John McSkimming, sought leave to appeal against their sentences, which were imposed after they were convicted of a series of offences involving dishonesty, including the theft of boats, trailers, and related equipment, as well as shoplifting. Each applicant was sentenced to four years imprisonment with parole eligibility recommended after 18 months. The applicants argued that the sentences were manifestly excessive.

The court considered whether the sentences were appropriate given the nature of the offences, the value of the property involved, and the applicants' criminal histories. The court noted that the offences occurred over a period, were carefully planned, and involved substantial property loss. Campbell, the younger applicant, had a more serious prior criminal history than McSkimming and had previously been imprisoned. However, McSkimming argued that he should receive more lenient treatment due to his lesser prior criminal history and the impact of his imprisonment on his family.

The court found that the sentence imposed on Campbell was appropriate, but there was a marked lack of parity in the treatment of the applicants. McSkimming, with his lesser prior criminal history and the fact that Campbell committed more offences, had a justified sense of grievance. The court decided to interfere with the sentence only to the extent of varying the parole recommendation for McSkimming, reducing the eligibility period from 18 months to 15 months.

The court refused the application in the case of Campbell, while granting the application in the case of McSkimming. The court allowed the appeal and varied the sentence imposed in the District Court to order that McSkimming be eligible for consideration for parole after he has served 15 months of the four-year term imposed.

Orders