R v Gadd

[1994] QCA 358

IN THE COURT OF APPEAL [1994] QCA 358

SUPREME COURT OF QUEENSLAND

C.A. No. 249 of 1994

Brisbane

[R. v. Gadd ]

BETWEEN:

T H E Q U E E N

v.

GLENDEANNA DOROTHY GADD (Applicant)

Fitzgerald P.
Pincus JA.

Cullinane J.

Judgment delivered 14/09/94
Judgment of the Court

Application for leave to appeal against sentence granted. Appeal allowed. Sentence imposed below set aside and in lieu thereof order that the applicant be placed on probation for 6 months on the usual terms and conditions

CATCHWORDS:CRIMINAL LAW - Sentence - Wilful damage - applicant, 19 at time of offence, arrested for using insulting words and placed in police vehicle - applicant kicked rear triangular window - $50.00 damage - sentence of 1 month imprisonment imposed - whether term of probation should be substituted.

Counsel:Mr. T. Martin for the applicant

Mr. J. Henry for the respondent

Solicitors:Boe Feeney and Hogan for the applicant

Director of Prosecutions for the respondent

Hearing Date:14/09/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14/09/94

This is an application for leave to appeal against a sentence imposed in the Magistrates Court at Brisbane on 8 June 1994 for one count of wilful damage. The applicant, who pleaded guilty to the charge, was nineteen years old at the time of the commission of the offence and twenty-one at the time of sentencing. She was sentenced to imprisonment for one month, and has applied for leave to appeal against that sentence on the basis that it was, in the circumstances, manifestly excessive.

The offence concerned wilful damage to a police vehicle on 6 June 1992. The applicant was arrested for using insulting words and was placed in the rear of the vehicle. She kicked with both legs at the rear triangular window, causing $50.00 damage.

When the present charge first came before the Court it was adjourned, and the applicant was not brought back before the court on this charge prior to her appearance, on 1 April 1994, in respect of a charge that she had murdered her former de facto husband. She was remanded in custody on that charge and, on 7 April 1994, she again appeared in the respect of the present charge, when she was remanded without application for bail being made.

When the applicant came to be sentenced on the present wilful damage charge on 8 June 1994, she had been in custody for approximately two months. She was supporting a twelve month old child, and was thirty weeks pregnant with another child with a caesarean section due to be performed in the thirty-eighth week of pregnancy. The police prosecutor did not seek a custodial sentence.

Nonetheless, the acting magistrate sentenced the applicant to one month's imprisonment, and she remained in custody until she was released on bail by the Supreme Court on 17 June 1994 in respect of the both the murder charge and this appeal.

The applicant has no doubt been a nuisance to her community
at Murgon. She has been offending since she was sixteen, and
has a series of convictions for, mostly but not exclusively,
comparatively minor offences. Some of her offences, however,
have involved either violence or dishonesty. For the most part,
she has not received custodial sentences.

In the past, she has only received one period of probation, which seems to have done her some good. She was placed on probation for fifteen months on 17 December 1990, and seems not to have committed any offence of which she was convicted during that period until the present offence of wilful damage which occurred with only days of her period of probation to expire. Further, she seems to have largely kept out of trouble following the present offence until the alleged murder of her husband in about April this year.

At the time when she was sentenced on the present offence, the applicant was in the course of what appears to be a difficult pregnancy, involving early delivery by caesarean section. She has another baby to care for. She is young, and according to submissions made to the acting Magistrate, poor and without any permanent place of abode. Further, she has a problem with alcohol. At the time when she was sentenced she had been in custody on remand for two months. She pleaded guilty to the present charge. In the Magistrates Courts, the police prosecutor did not seek her incarceration on this charge, and a similar attitude was manifested by Counsel for the prosecution in this Court, who accepted that an order for probation would be appropriate. The appellant, by her Counsel, has consented to that course, which we are satisfied we should adopt.

Accordingly, the application for leave to appeal is granted and the appeal allowed. The sentence imposed below is set aside and, in lieu, it is ordered that the applicant be placed on probation for six months on the usual terms and conditions.