R v Hargrave

[1996] QCA 5

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 429 of 1995
Brisbane
[R. v. Hargrave]

T H E Q U E E N

v.

TULSA ADAM HARGRAVE (Applicant)

FITZGERALD P.

MCPHERSON J.A.

MACKENZIE J.

Judgment delivered 09/02/1996

REASONS FOR JUDGMENT - THE COURT

Application for leave to appeal against sentence refused.

CATCHWORDS:	SENTENCE - unlawful use of a motor vehicle, house-breaking and stealing - whether 12 months’ imprisonment for each count, suspended after 4 months with an operational period of 3 years was manifestly excessive - aplicant was 18 years old at the time he committed the offences - has an extensive criminal history of committing similar offences
Counsel:	D. Lynch for the Applicant J. Costanzo for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	30 January 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 429 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Mackenzie J.

[R. v. Hargrave]

T H E Q U E E N

v.

TULSA ADAM HARGRAVE (Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/02/1996

This is an application for leave to appeal against sentences imposed in the District Court at

Brisbane on 4 October 1995. The applicant pleaded guilty to three offences, one of unlawful use

of a motor vehicle on 6 September 1994, one of house-breaking on 5 October 1994 and the other

of stealing on that date. On each count, he was sentenced to imprisonment for 12 months,

suspended after four months with an operational period of three years.

On the evening of 6 September 1994, the applicant removed a motor vehicle from outside its

owner’s home and was subsequently apprehended by police who noticed it speeding. Repairs

to the vehicle costing $2,635.11 were necessary.

On 5 October 1994, the applicant acted as lookout while friends entered a home during daylight

hours and stole domestic and personal items valued at $5,894. When interviewed, the applicant
admitted his involvement.

The applicant was born on 13 April 1976 and was aged 18 years when he committed the offences

and 19 years when he was sentenced. By then, he had already compiled a criminal history. In

March 1994, he was ordered to perform 100 hours’ community service for offences of house-

breaking and stealing; in May 1994, he was placed on probation for three years and ordered to

perform 240 hours’ community service for house-breaking, stealing and false pretences; later the

same month, he was placed on probation for two years and ordered to perform a further 240

hours’ community service for house-breaking and stealing; in September 1994, he was placed

on probation for three years and fined $800 for entering a dwelling-house with intent, two

offences of stealing, one of house-breaking, one of attempting false pretences, two of receiving

and one of false pretences; in February 1995, following breaches of probation and community

service, he was re-sentenced for earlier offences to imprisonment for nine months with a

recommendation that he be considered for parole after three months; and later that month, he was

sentenced to 21 days’ imprisonment for two breaches of the Bail Act.

In sentencing the applicant, the judge expressed the opinion that imprisonment was inevitable

having regard to the applicant’s failure to learn from the past opportunities which he had been

given, but his Honour said that he would order only the minimum period of imprisonment which

was necessary to indicate the Court’s disapproval of the applicant’s conduct.

It is not easy to find a basis for the applicant’s contention that the sentences imposed were

manifestly excessive. Reference was made on the applicant’s behalf to his admission of the

house-breaking and stealing offences and his plea of guilty to all offences, to his on-going performance of community service and to the period of imprisonment which he had served under

the sentences imposed in February 1995 which, it was said, was about five months and two

weeks. The applicant’s counsel said that, now that he had experienced prison, he had resolved

to avoid re-offending. Further, it was submitted that a proper exercise of the sentencing

discretion did not require the applicant to serve an additional period in custody for the present

offences which were committed prior to the sentences of imprisonment imposed in February

1995; it was said that, if the present offences had been dealt with at that time, little, if any,

additional time in custody would have been ordered.

However, counsel for the applicant effectively acknowledged that the latter point largely

depended upon the inability of the criminal justice system to keep up with the applicant’s

offending conduct, and that the matters referred to did not individually or collectively establish

that the present sentences were manifestly excessive. As was pointed out by the respondent,

count one related to an offence which was committed only three and a half months after the

applicant had been placed on probation in May 1994 and just three days before he appeared in

the District Court in respect of further offences of dishonesty. Further, the offences in counts two

and three were committed soon after his arrest in respect of the offence the subject of count one,

and at a time when he was in breach of probation orders.

The applicant’s main argument was that on 14 December 1995, whilst serving the present

sentences, he was admitted to bail. Accordingly, he has served ten weeks and one day of the four

month period of actual custody imposed, leaving a further seven weeks and three days to be

served. It was submitted that he has enrolled in, but not yet been accepted in, a pre-vocational

course in engineering, and has been offered an apprenticeship at the completion of that course
which was due to commence on Monday, 5 February 1996 and continue for 38 weeks.

Essentially, the submission made was that the applicant should not be denied that opportunity

because he was committed to rehabilitation.

While this Court is always anxious to ensure that offenders, especially young offenders,

maximise their prospects of rehabilitation, the matters referred to on behalf of the applicant failed

to demonstrate any error in the sentence imposed below. It might also be noted that if the

applicant was genuinely interested in ensuring that he was in a position to pursue studies and a

career, he could, by now, have largely completed the period of actual custody which he was

ordered to serve. He cannot be permitted to create a basis for interference by this Court with the

sentence imposed below by obtaining bail and then saying that he will be disadvantaged if he is

sent back to prison because he spent the period since he was granted bail on bail rather than in

prison.

In our opinion, there is no merit in the application which should be refused.

IN THE COURT OF APPEAL	[1996] QCA 005
SUPREME COURT OF QUEENSLAND	C.A. No. 429 of 1995
Brisbane [R. v. Hargrave]

T H E Q U E E N

v.

TULSA ADAM HARGRAVE (Applicant)

FITZGERALD P. MCPHERSON J.A.

MACKENZIE J.

Judgment delivered 09/02/1996

Further Order delivered 16/02/1996

FURTHER ORDER OF THE COURT

IT IS FURTHER ORDERED THAT A WARRANT ISSUE FOR THE APPLICANT’S

ARREST.

Counsel:	D. Lynch for the Applicant J. Costanzo for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Crown
Date of Hearing:	30 January 1996