R v Ferranti

[1992] QCA 78

COURT OF APPEAL             [1992] QCA 078

MACROSSAN CJ
DAVIES JA
WILLIAMS J

CA No 339 of 1991

THE QUEEN

v.

FULVIO PIERO FERRANTI  Applicant

BRISBANE

... DATE 30/3/92

... DAY 1

JUDGMENT

JUDGMENT
THE CHIEF JUSTICE:  The applicant was convicted in December of 1991, having pleaded guilty to four counts.  The first count was one of receiving, alleged to have occurred between August and November of 1989.  The items in question there were car parts.  He was sentenced to 18 months custodial term on that count.

The second count was one of false pretences said to have occurred in October of 1989; that involved the selling of car parts.  He was sentenced once more to 18 months custodial term.  Those two sentences were ordered to be served concurrently.  The second two charges were also dealt with so that the sentences were, between themselves, to be served concurrently.

Count number 3 involved the unlawful use of a motor van with a circumstance of aggravation.

The circumstance of aggravation in the indictment was stated to be fore the purpose of facilitating the commission of an indictable offence.  It was revealed that the indictable offence in question was the stealing of parts from yet another motor vehicle.  Count 4 was a simple count of stealing in July 1989.  Once again, car parts were involved on this occasion.  Count 3 attracted a custodial term of two and a half years and count 4 a term of six months.  Counts 3 and 4, it was ordered as I have already indicated, should have their respective terms served concurrently, that is between themselves, however the learned sentencing Judge ordered that the penalties be imposed on the first two counts and the last two, would be served cumulatively.

The effect then was that the two and a half year terms on count 3 being added to the 18 months on each of the first two counts, gave an effective term of four years' imprisonment.  The stolen parts referred to in the first two counts came from a particular VW motor vehicle which was uninsured and the owner of it lost, it appears, some $15,000 as a result of the operations and the loss of his vehicle.  The applicant, although a young man, 24 years of age, had a lengthy criminal history.  He had been convicted and sentenced on a variety of charges.  However, due perhaps to what the sentencing Judge referred to as indulgent treatment, he had never previously been sentenced to a custodial term; that is putting aside the possibility that he might have had to serve a custodial term in default of payment of fines.

He was dealt with mainly by fining, but he had also been ordered to perform community service and he had been placed on probation.  A strong argument was levelled against the sentencing Judge's order that the two pairs of separate orders be served cumulatively.  It is possible to say that the more usual approach would certainly, in a case like this, have been to order that any penalties imposed be served concurrently, but that is not to say that there was not an option to order that the penalties be served cumulatively, and again it has to be emphasised that this would only be a course properly open if the overall effect of the sentences was not disproportionate to the criminality involved.

The possibility of separating the offences into two pairs could be argued to have been theoretically available because there was no immediate connection between the two pairs of offences, either in terms of time or the immediate circumstances surrounding them.  They were, at least, a month and perhaps more than that apart, the first offence charged having occurred between August and November and the second in October in each case of 1989 while the last two offences were alleged to have occurred in July of 1989.  However, the fact that it may have to be conceded that an approach which would result in the penalties being ordered to be served cumulatively may have been open is not, as I say, the end of it if this Court is of the view that the overall effect was excessive.

Now, the previous criminal history was extensive enough and the first matter that appears in that history when he was dealt with in 1984 was one of stealing.  The range of offences is quite large, driving while unlicensed appears, stating false names and addresses, certain drug offences, and the rest of it.  The applicant is far from having been a model citizen in his life and he is only 24 years of age but it is a factor to my mind that he had never previously been ordered to serve a custodial term.

His Honour also said in some remarks in the course of passing sentence, "that setting up as a receiver or dealer in stolen motor vehicle parts is obviously very serious".  The weight of those remarks must be conceded but their application in the present case is not entirely clear.  It is not definitively established in my mind that the applicant was indeed setting himself up in some ongoing business of dealing with stolen motor vehicle parts that is on a continuing basis.  Be that as it may, the main thing which influences me was the fact that he had never previously been ordered to serve a custodial term and for that reason I would regard the effect of the sentences imposed in his case as being excessive and I would interfere.  I think the appropriate way in the particular case before us to deal with the orders made below is simply to set aside that portion of His Honour's order which required the two pairs of sentences to be served cumulatively.  That part should be set aside so that all of the sentences imposed below should be served concurrently.  I would not otherwise interfere with the orders made.

DAVIES JA:  I agree.

WILLIAMS J:  Given that the applicant has not served a gaol sentence, notwithstanding his previous bad criminal history, I am of the view that an effective sentence of 4 years' imprisonment is out of proportion to the overall criminality of his conduct in question.  In my view a head sentence of 2 and a half years' imprisonment in all the circumstances reflects the overall criminality of that conduct and for that reason I agree with all that has been said by the learned presiding Judge and with the order he proposes.

THE CHIEF JUSTICE:  The order will then be as I have indicated.

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