R v Hagan

[1995] QCA 621

[1995] QCA 621

COURT OF APPEAL

MACROSSAN CJ
FITZGERALD P
PINCUS JA

CA No 387 of 1995

THE QUEEN

v.

JAMES ERNEST HAGANApplicant

BRISBANE

..DATE 15/11/95

JUDGMENT

THE CHIEF JUSTICE:  This is an application for leave to appeal against a sentence imposed as a result of the commission of two offences.  The sentence was one of two years imprisonment with a recommendation for parole after six months.  Combined with that was an order for restitution of $10,000 to be paid to the victims of the offence within 12 months and in default of payment of that sum it was ordered that the applicant be imprisoned for six months.

The offences took place in January of 1995 and the two relevant charges were housebreaking and stealing.  The circumstances in which those two offences were committed appear in the outlines of the two parties represented before us.  The applicant was a member of a group which on the night of the offences and more strictly the morning when the offences themselves occurred, had been occupied in driving round looking for houses to break into to steal from.

After a night spent in this activity with varying results, the group saw people leaving the house of the present victims in the suburb of Wolffdene.  This was early in the morning, about 6 a.m.  The group of which the applicant was a member then had a discussion about the availability of this particular house, and they decided to go back to it. 

The applicant and one of his accomplices broke in.  Various members of the group took part in ransacking the premises and another member, a female, kept watch.  The house was quite thoroughly ransacked. 

Storage facilities in it were opened.  $40,000 worth of property was taken.  More electrical property was placed near the front door.  As incidental to their activities $2,000 worth of damage was done to windows and carpets, and as a further insult faeces were wrapped in clothing and linen and left in the ransacked premises.

However, neighbours of the complainant saw the motor vehicle used in the offences parked outside the complainants' house and saw goods being removed from the house to it.  The registration number was noted and the police were eventually notified and they made contact with the applicant.

The total amount of property taken and not recovered was $40,000.  The police investigations led them to speak to the applicant who supplied them with false information, but subsequently made a full confession.

The applicant is a 30 year old and he had some criminal history.  Between the years 1981 and 1987 he had been convicted of a number of offences, offences which were dealt with on, it appears, seven separate occasions.  He had been dealt with in different ways as a result of his convictions, but included amongst them were probation and community service and fines as well.  It is relevant to mention that there had been no convictions recorded between 1987 and the date of these offences at the beginning of this year.

The sentencing Judge seems to have reviewed relevant matters in an appropriate fashion.  He did take into account the fact that there had been no convictions over the period of eight years or so, but he was left with serious offences to deal with at the end of it all and he had to keep in mind the situation of the complainants and what had been done to them, as well as the interests of the public in a matter such as this.

On behalf of the applicant, it is accepted that a two year term of imprisonment was appropriate enough, but it is urged that it should have been suspended immediately for a period which could be selected and it was suggested it should have been four years.

It was accepted also that the order for compensation was appropriately made.  Indeed looking at the record we see that the suggestion that there should be some order for restitution and that it could well be in the sum of $10,000 came from the applicant's side in the course of the hearing.

Having in mind the applicant's mature age and his previous criminal history, as well as the serious circumstances of the present offences, it is my view that it cannot be said that the sentences were in any way excessive and that accordingly  the position is that this Court is not, in my view, entitled to interfere.  I would refuse the applications.

THE PRESIDENT:  I agree.

PINCUS JA:  I agree.

THE CHIEF JUSTICE:  Applications are refused.

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