R v Glenbar

[1993] QCA 261

[1993] QCA 261

COURT OF APPEAL

FITZGERALD P MCPHERSON JA DEMACK J

CA No 72 of 1992

THE QUEEN

v.

ROY JAMES GLENBAR	Applicant
BRISBANE
..DATE 22/06/93 JUDGMENT

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220693 T 8/SJ M/T COA93/543

THE PRESIDENT: The applicant has appealed against a sentence

of 18 months imprisonment, suspended for 18 months, imposed
upon him in the District Court on 16 February 1993 in respect

of an offence of receiving on 28 October 1992.

Police officers, who had responded to an alarm from a

restaurant in Fortitude Valley in the early hours of 29

October 1992, saw the applicant reach into a rubbish bin,

remove three bottles of liquor, which had nip pourers attached
to the tops, hand them to persons in a taxi, and commence to

enter the taxi himself. The applicant had been drinking and was quite intoxicated. It appears that he had been informed by another person that the liquor was in the rubbish bin and

he was apprehended almost immediately that he removed the

bottles. He had possession of the property only very briefly.

Although he gave police a false name when spoken to, he

subsequently made a timely plea admitting his guilt.

The applicant, who was born on 4 December 1965, was aged 27

years at the time of the offence and 28 years when he was

sentenced. He had a long-standing alcohol problem which was

being treated at Logan House. He also had a significant

criminal history which included 7 charges of assault,
assaulting police or resisting police; 5 charges of wilful

destruction of property; at least 3 charges associated with

breaking and entering, 15 charges of unlawful use of a motor

vehicle, and 8 charges of stealing or receiving, as well as

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other counts.

He had previously been ordered to make restitution, to perform

community service and had been fined, placed on probation for

periods up to two years on several occasions and frequently

imprisoned since September 1983 for various periods ranging

from the rising of the Court to seven days; one, two, three,

four, five and six months and finally, a period of 12 months.

The respondent submitted that “it is difficult to imagine what

sentence the sentencing Judge might responsibly have imposed

in lieu of that which he did impose". With the applicant's

record for similar related and generally chronic offending and
a history of past imprisonment, probation orders and other

treatments by the Court since 1983, it was submitted that the

suspended sentence should be recognised as being, if anything,

on the generous side.

However, the applicant submitted that the sentence was

manifestly excessive and placed considerable weight upon the
“marginal” nature of the offence. It was argued that the

applicant had been informed of the location of the property by

the person who had stolen it and merely "reached into the

rubbish bin and had three partially full bottles of alcohol in

his possession for a brief period of time, apparently no more

than approximately 30 seconds". It was pointed out that the

applicant received nothing from the offence.

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It was also pointed out that the applicant was quite

intoxicated at the time and had no knowledge of, or direct

involvement in, the offence committed to steal the bottles.

The applicant did not drink any of the liquor and it was said

that his possession of it was "transitory at most”. The

applicant did not challenge the imposition of a suspended
sentence but argued that the length of the head sentence was

manifestly excessive.

Attention was drawn to the requirement under section 147

subsection (2) of the Penalties and Sentences Act that the
sentence which is suspended be imposed if another sentence is
committed unless circumstances have arisen since the time of

the suspended sentence which would make such a result unjust.

It was submitted that it would be an incorrect sentencing

principle to impose a longer head sentence than otherwise

because the sentence was to be suspended.

In my opinion, the head sentence of 18 months imprisonment was

manifestly excessive for what was a relatively minor offence.

Because of the applicant's appalling criminal history, a

sentence of imprisonment was called for although I accept that

it was appropriate to suspend it in all the circumstances. I

would grant leave to appeal and allow the appeal and
substitute for the head sentence of 18 months imprisonment a

term of imprisonment for four months, suspended for 18 months.

McPHERSON JA: I agree.

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DEMACK J: I agree.

THE PRESIDENT: The order of the Court is application granted,

appeal allowed. Sentence imposed below set aside and in lieu

thereof the applicant is sentenced to imprisonment for four

months, suspended for a period of 18 months to run from the

date of imposition of the sentence in the District Court on 16

February 1993.

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