R v Greensil

[1996] QCA 101

[1996] QCA 101

COURT OF APPEAL

DAVIES JA PINCUS JA AMBROSE J

CA No 498 of 1995
THE QUEEN
v.

SHAUN DOUGLAS GREENSIL Applicant

BRISBANE
..DATE 13/03/96
130396 T21/VT9 M/T COA41/96
DAVIES JA: The applicant was convicted on his own plea on
14 November last of four offences, two of unlawful use of a
motor vehicle with a circumstance of aggravation, one of
unlawful use of a motor vehicle, and one of wilful damage, all
of which were committed on the night of 25 April 1995.

He was sentenced to three years probation and 150 hours community service. In addition, he was disqualified from holding a driver's licence for two years and convictions were recorded. He seeks to appeal only against the disqualification from holding a driver's licence and the recording of his convictions.

At the time of the commission of these offences the applicant
was only 17 years of age, having been born on
6 September 1977. He had no prior criminal history. Moreover
he was, and remains, in full-time employment and appears
otherwise to have been of good character. He has the support of

his parents.

The offences involved breaking into a used car yard with two co-
offenders, damaging two cars in order to move them, and driving
away in a white Commodore. One of the applicant's
co-offenders drove, the applicant being a front seat passenger.

The car was then involved in a chase with a police car which ended in some damage being caused to the Commodore and another car. The applicant was apprehended at the scene, as was the back seat passenger, but the driver escaped and has apparently not yet been apprehended.

130396 T21/VT9 M/T COA41/96
The applicant pleaded guilty at his committal and the learned
sentencing Judge quite properly took that into account, not it
would seem, as evidence of remorse but because it resulted in a
saving of time and cost. The applicant apparently also
cooperated with the police by identifying the driver who had
escaped and supplying details of his address to the police.

There was an inconsistency as to who was the leader of the enterprise among the three offenders. In his statement to the police the applicant volunteered that he was. However, on the sentence hearing his counsel said that he had done this in order to shoulder the blame; that the suggestion for the enterprise was made by the driver, and eventually the applicant agreed to it. This inconsistency was not resolved at the sentence hearing and I assume that the learned sentencing Judge proceeded, no doubt, with some reservations upon the version put forward by the applicant's counsel at the hearing. I am content to proceed also on that basis.

Having regard to the mitigating factors to which I have referred, the learned sentencing Judge quite properly did not send the applicant to gaol. However, it does not necessarily follow from these factors that he should not have recorded a conviction or should not have disqualified the applicant from driving for two years. These were quite serious and prevalent offences. It was not inappropriate, in my view, in the circumstances of this case, to make the disqualification order which the learned sentencing Judge made nor, having regard to the seriousness of the offences, was any good reason advanced for not recording the convictions.

130396 T21/VT9 M/T COA41/96
No foreseeable risk of loss of employment was advanced as a
reason for not recording a conviction.

I could not be satisfied that the learned sentencing Judge erred in exercising his discretion in the way in which he did, either in recording a conviction or in disqualifying the applicant from holding a driver's licence for two years. Accordingly, I would refuse the application.

PINCUS JA: I agree and would only add that I think there is substance in the submission made by Mrs McGinness that, if one has regard to the whole collection of punishments imposed, including the disqualification, the treatment of the applicant does not seem to be particularly lenient. It may be that he has been treated in a way which is more severe than has occurred in some other cases. Having said that, I am unable to be persuaded that the two features on which Mrs McGinness fastens, the recording of a conviction and the disqualification, were, in the circumstances, such as to make the sentence excessive. I therefore agree that the application should be refused.

AMBROSE J: I agree. In my view the exercise of a sentencing discretion has not been demonstrated to be such as to warrant an interference by this Court with it.

DAVIES JA: The orders are application refused.

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