R v D

[1993] QCA 295

IN THE COURT OF APPEAL [1993] QCA 295

SUPREME COURT OF QUEENSLAND

C.A. No. 186 of 1993

Brisbane
[R. v. Degen]

BETWEEN:

T H E Q U E E N

v.
ALAN LESLIE DEGEN

(Applicant)

The President
Mr Justice Pincus

Mr Justice Moynihan

Judgment delivered 12/08/93
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - Sentence - While on probation for unlawful use of a motor vehicle, 19 year old applicant stole handbag - sentenced to 8 months imprisonment - whether manifestly excessive.
Counsel:	Mr. P. Brown for the applicant Mr. M.J. Byrne for the Crown
Solicitors:	Legal Aid Office for the applicant Director of Prosecutions for the Crown

Hearing Date(s): 09.08.93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 186 of 1993

Before The President

Mr Justice Pincus

Mr Justice Moynihan

[R. v. Degen]

BETWEEN:

T H E Q U E E N

v.

ALAN LESLIE DEGEN

(Applicant)

REASONS FOR JUDGMENT - THE COURT

This application for leave to appeal against sentence was
refused on 9 August 1993. The reasons for that decision follow.
The applicant was born on 26 June 1974 and is presently
aged 19 years. On 11 October 1991, when he was 17 years of age,
he robbed a sixty-year old female pensioner of her handbag. She
was walking along a major road late that morning when she was
"shoulder charged" by the applicant, who struck her in the
middle of the back causing her to lose her balance. He then
grabbed her handbag and ran off. His criminal history to that
time involved only minor offences and, when he pleaded guilty
and was sentenced on 6 March 1992 in connection with that

robbery, he was placed on probation for three years and ordered

to perform 240 hours of unpaid community service.

On 3 February 1993, while he was on probation, the applicant unlawfully used a motor vehicle. He was convicted of that offence on 22 February 1993 and was sentenced to imprisonment for three months and ordered to pay restitution of $300.00. He has served that term of imprisonment.

That offence involved a breach of probation and, on 14 May 1993, the applicant reappeared in the District Court at Brisbane to be resentenced in respect of the offence of robbery upon which he had originally been admitted to probation. The sentencing judge had before him unfavourable reports from the Queensland Corrective Services Commission dated 22 February 1993 and 19 April 1993. It is sufficient to quote one paragraph from the latter report:

"Mr Degen's reporting has been unsatisfactory, failing to report as directed on many occasions. He has consistently resisted attempts to help him find employment and participate in programs designed to address his offending behaviour. In addition his Community Service performance has been unsatisfactory ...".

On 14 May 1993, the applicant was sentenced to imprisonment for eight months in respect of the robbery offence.
In the course of argument before this Court, reference was made to two of its previous decisions; R. v. Cuthbert (CA 261 of 1991, judgment delivered 24 February 1992) was relied on by the prosecution and R. v. Ninotti (CA 329 of 1992, judgment delivered 3 February 1993) was relied by the applicant. However, as counsel acknowledged, neither case is directly determinative of the present application.
In Cuthbert, an application for leave to appeal against a sentence of three years' imprisonment was allowed and a sentence of imprisonment for two years six months was substituted. The offence there was robbery in company with violence. Cuthbert, who was seventeen years of age and had no previous convictions, pleaded guilty. When first brought before the court, he had been placed on probation for two years, but subsequently he was resentenced following offences of unlawful use of a motor vehicle, house breaking (six charges) and false pretences (two charges).
Thomas J., who delivered a judgment substantially agreed in by the other members of the Court, rejected the suggestion that R. v. Gills (1986) 1 Qd.R.459 required a cumulative sentence to be imposed and, after referring to some decisions which were described as "comparable", said:

"The middle range sentence for the circumstances detailed
would seem to be about two years six months."

The expression "the circumstances detailed" may perhaps embrace the whole of the circumstances we have mentioned, including the

breach of probation. However, that statement is not, and should not be interpreted as, a statement that the middle range for a youthful first offender who commits an offence of "bag snatching" is a term of imprisonment for two and half years. Sub-section 9(4) of the Penalties and Sentences Act 1992 makes it plain that an offender who is under the age of 25 years and has not previously been convicted should only be imprisoned if "no other sentence is appropriate in all circumstances of the case."
Ninotti did not involve an offence of "bag snatching". Originally, Ninotti pleaded guilty to two charges of stealing with circumstances of aggravation and was admitted to two years' probation on each charge with a special condition that he pay $1,835.00 restitution. He was nineteen years of age at the time of those offences.
Subsequently, while on probation, he pleaded guilty to one count of producing a dangerous drug, one count of possession of a hydroponic system used in connection with producing a dangerous drug, one count of possession of a dangerous drug and one count of possession of things used in connection with the smoking of a dangerous drug. In relation to those offences he was sentenced to perform 160 hours' unpaid community service which he had performed prior to being brought back before the District Court to be resentenced in respect of the stealing charges following his breach of probation. On those offences, he was sentenced to imprisonment for three months. This Court set aside that sentence and placed Ninotti on probation for a period of three years with a condition that he perform 100 hours unpaid community service.

The Court considered that the sentencing judge had erred in proceeding on the basis that the probation previously granted to Ninotti had failed. His personal circumstances and the other factors referred to satisfied the Court that his potential for rehabilitation remained but would be placed at risk by imprisoning him and that such a course would be "against the community interests as well as the interests of the applicant."

In the present case, the applicant has already completed one term of imprisonment and almost completed the further term of imprisonment imposed in respect of the subject charge. The submission that the sentencing judge "failed to properly take into account the age, previous good character, the plea of guilty ... compliance with original order, ..." and the applicant's "total criminality" is not made out. On the contrary, the applicant's conduct, apart from the further offence, demonstrated that community based orders had not worked for the applicant and that imprisonment was accordingly appropriate as a last resort.

Once that point was reached, there was nothing in the term of imprisonment imposed which could be described as manifestly excessive. The application was accordingly refused.