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 involving property of substantial value, to select from within a range of say three to five years, broadly speaking, was not to my mind even arguably inappropriate.

Mr McSkimming, for his part, asserts a lack of parity with Campbell pointing to his, McSkimming's, lesser prior criminal history and Campbell's in fact having committed more offences, 16 as against McSkimming's 10.

On the other hand of course Campbell was a younger man.

The question of disparity is, however, to my mind pointed up particularly by contrasting the prior criminal histories of the men. It is highly significant that Campbell had previously been imprisoned yet chose again to offend whereas McSkimming, albeit he'd been given the benefit of probation in the early seventies, had not previously offended and the penalties visited upon him by way of fine for his previous offending suggests that it was not of a particularly serious character and the penalties visited upon Campbell were somewhat more substantial.

McSkimming also points to the circumstance of his two
teenage boys left without the presence of their father.
280799 T13/JT16 M/T COA169/99

Their mother now cares for them. This, regrettably, is

a consequence which the applicant should have foreseen
and one which, to my mind, should not of itself have led
to more lenient treatment.

I can see no basis at all for interfering with the sentence imposed upon Campbell. I think it was an appropriate sentence and I would refuse his application.

As to McSkimming, however, I think that with the

disparity between his past criminal history and that of
Campbell's, and allowing for the fact that Campbell did
also, in fact, commit more offences than McSkimming, he
is reasonably left with a justified sense of grievance
that he was given precisely the same treatment by the
learned judge as was Campbell.

In this Court we must be very careful not, as it's put sometimes, to fine tune and tinker with sentences and only to interfere when to do so is justified by what appears to be either a manifestly excessive treatment at first instance or a marked lack of parity.

I consider in this case that there is a marked lack of
parity for the reasons I have expressed. The question
arises as to the extent to which we could, however, vary
the sentence imposed upon McSkimming. I consider the
justified variation is to the recommendation with
relation to parole reducing it from eligibility after 18
months to eligibility after 15 months.
280799 T13/JT16 M/T COA169/99
As to the question whether that is a justified
interference on appeal, that is a reduction by three
months in the period provided for by the parole
recommendation, I think the likelihood that the
recommendation will, with a person like this, be
respected does warrant that sort of interference which
amounts to, in theoretical terms anyway, a sixth of the
term which would be served were the parole
recommendation followed.

I would refuse the application in the case of the prisoner Campbell. In the case of McSkimming I would grant the application, allow the appeal and vary the sentence imposed in the District Court but only to the extent of ordering that the applicant, McSkimming, be eligible for consideration for parole after he has served 15 months of the four year term imposed.

Those are the orders of the Court.

-----