R v Grant

[1992] QCA 406

COURT OF APPEAL  [1992] QCA 406

DAVIES JA
DERRINGTON J
de JERSEY J

CA No 275 of 1992

THE QUEEN

v.

BRYAN TERRENCE GRANT  Applicant

BRISBANE

..DATE 12/11/92

JUDGMENT

121192
DAVIES JA: This is an application for leave to appeal against a sentence of six months imprisonment imposed on 25 September this year by the District Court upon a plea of guilty to the charge that on a date unknown between 24 January 1992 and 5 February 1992 at Loganholme in the State of Queensland the applicant had in his possession a Holden Statesman motor vehicle without consent of the person in lawful possession of it with intent to permanently deprive him of its use and possession with the added circumstance of aggravation that he wilfully damaged the mechanism and other parts of the vehicle.

The applicant is 28 years of age, having been born on 31 October 1963. He has no previous convictions. The circumstances which gave rise to the commission of the offence were that the vehicle in question had been displayed for sale in a used caryard at Springwood. It was removed from there over the Australia Day long weekend this year. It was discovered on the morning of 28 January that a chain had been cut and the vehicle was missing. On 5 February the police executed a search warrant on the applicant's home at Loganholme underneath which they found the chassis of the
vehicle which had been stripped and cut into 13 parts. The roof had also been removed. 

Whilst they were there the applicant arrived home in a vehicle, apparently saw them there and left immediately.  He was then intercepted by police nearby. He cooperated with the police. He admitted possession of the vehicle as indeed it would seem he had little alternative to do. He claimed that a friend had asked him if he wanted parts for his own vehicle, which was a Holden, and on 1 February he had been awakened in the middle of the night when the vehicle was delivered. He said he realised it would have been stolen when he saw it and that he panicked. For that reason he said he stripped it and cut it up. He said that some of the vehicle had been disposed of at a refuse tip. He intended to use the front end, the dash and the interior in his own car and to dump the rest.  The vehicle was destroyed beyond repair.

The owner of the vehicle had it for sale at $7,255 but its purchase price to him, and perhaps its real value, may have been no more than about $5,000. The applicant sought leave to appeal against the sentence on the ground that it was manifestly excessive. He was then given leave to, and did, add two further grounds of appeal as follows: (2) "The learned Judge misdirected himself in law and/or fact in feeling constrained to disregard the offer to make restitution". And (3), the learned Judge apparently failed to give weight to the plea of guilty and the full cooperation of the applicant.

With respect to the first of those, Mr Nase, who appeared for the applicant, directed us to His Honour's sentencing remarks and in particular to a remark which His Honour made that:

"It is not uncommon in matters of this kind that persons come to these Courts making all sorts of offers to make restitution although, when one looks at what efforts have been made in the time from when the police have got involved in the matter until the time the matter comes to Court, there very rarely has been any money set aside to make any restitution. So, you have to understand Courts must treat such offers as being rather empty ones."

His Honour, at that stage, was speaking in fairly general terms. He then more specifically said:

"In your case, I am told that you have had some expenses associated with your business of recent times and have been unable to put aside any money."

In fact, the submissions which were made indicated that notwithstanding that the applicant had been in employment over the whole of the period between February, when he was first interviewed by the police, and September, when he was sentenced, he'd not put any money aside and that during part of that period he had been on very good money.

On the other hand, the submissions did rather indicate that the applicant's position with respect to restitution in the future was at least doubtful. His counsel said that at the moment ‑ that is, at the time of sentence ‑ he didn't have any other jobs lined up and that, after mentioning all of the money that had been spent by the applicant on the upkeep of his truck which he used in his business, he said that his other problem is that next month he doesn't know what he is going to be earning, if anything.

All of this, in my view, supported His Honour's scepticism about the capacity of the applicant to make restitution.  Nothing was said about the car which the applicant was restoring or in any other respect the applicant's capacity to sell assets in order to make restitution, the submissions being entirely along the lines that whatever restitution the applicant would make would have to be made from whatever income he earned.

In my view, therefore, there is no substance in the ground that the learned Judge had misdirected himself in feeling constrained to disregard the offer to make restitution for two reasons. First, he did not disregard the offer to make restitution. He discounted it to some extent but did not disregard it. Secondly, he was, in my view, on the material which was put before him entitled to discount it and to have some scepticism about the capacity of the applicant to pay.  

The other added ground of appeal was not specifically argued, that is, failure to give weight to the plea of guilty and the full co‑operation of the applicant.  There was nothing in His Honour's sentencing remarks which would indicate that His Honour did fail to give weight to those matters.

There are nevertheless some matters which could probably be said, and Mr Nase did say them, in support of the argument which he made on the general ground; that is, that the sentence was manifestly excessive. The applicant has no previous convictions, a sentence of imprisonment in these circumstances will affect, not only his family life, but his capacity to continue in his business. He did in fact appear to be a good worker as well as having never had any previous trouble with the police and he will undoubtedly be affected in that way.

On the other hand, it seems to me that, notwithstanding that the sentence which was imposed was, in my view, rather a high one, I cannot be satisfied that it is beyond the range which the Judge was entitled to sentence within. In other words that it was beyond what would be the sound exercise of the sentencing discretion. I would, therefore, refuse the application.

DERRINGTON J: I agree.

de JERSEY J: I agree.

DAVIES JA: The application is refused.

...

DAVIES JA: A Bench Warrant will issue and it will lie in the  Registry for 24 hours.