R v Harris

[1996] QCA 537

COURT OF APPEAL

[1996] QCA 537

McPHERSON JA
DAVIES JA
MOYNIHAN J

CA No 473 of 1996

THE QUEEN

v.

IVAN HARRIS

BRISBANE

..DATE 04/12/96

JUDGMENT

McPHERSON JA:  This is an application for leave to appeal against a sentence imposed in the District Court at Cairns.  The offences were breaking and entering, receiving a television set and stealing a length of rope.  The sentence was imprisonment for 18 months suspended after six months for a period of 18 months, together with an order that the applicant pay compensation in an amount of $120 and that he do so within 12 months, in default imprisonment for three months.  The application, as will appear in the course of the remarks I am about to make, is directed primarily, if not solely, to the default penalty imposed in case the applicant does not pay the compensation.

The circumstances of the offence are, briefly speaking, these, that the applicant broke into a service station in Cairns in 1991.  He was busy collecting goods and property which he found there in order to take them away when the police arrived.  He had been seen entering the place and was caught red-handed.  The police then went to his residence and there found a television which the applicant admitted to having bought in circumstances in which he also admitted he had reason to suspect it was stolen.  He was then taken to the police station where he stole a piece of rope or clothes line that he saw there.  When asked why he had done that he said simply that he wanted a piece of rope.

Having been charged with these offences and having been granted bail, he then decamped to Victoria.  He stayed there for some five years and then returned to Cairns, where he was evidently recognised and arrested again on the old warrant. That explains why there is such a great interval between the time of commission of the offence and the time of his being sentenced for it.

He has, in fact, a not very satisfactory personal record.  He's a man now of some 29 years of age.  He was 24 when the offence was committed. He is not without a variety of trade qualifications that have enabled him to fill various occupations and do so, one would infer, with a degree of financial reward to himself.  His problem, it seems, is that he has become involved with drugs, and he has a lengthy series of previous convictions for offences committed both before the subject offences were committed in 1991 and after them. 

In view of his record the sentence of imprisonment imposed was certainly not excessive and, as I understand it, it is not being contended that it was.  The real question is, as I mentioned, that he was ordered to pay compensation of $120 within 12 months, in default of payment imprisonment for a further period of three months.  The compensation ordered to be paid arose out of his having smashed a plate-glass window at the service station, and that was the assessed cost of repair or value of the window.

The argument that was put to us was that a three-months default penalty in return for failure to pay $120 compensation was too heavy a penalty.  For my part, I cannot see why, in an appropriate case, a Judge or Magistrate may not impose a penalty which goes beyond the tariff, as it is supposed to be in the Magistrates Court, which prevails in cases of this kind. It would, of course, be mandatory for a judicial officer acting in that way to ensure that the default penalty was not being used simply as a means of increasing the punishment imposed for the primary offence; but one can well imagine circumstances in which, for reasons that seem good to a Judge or Magistrate, it may be thought that a substantial default penalty is likely to bring about the desired result that compensation will be paid where otherwise the offender might simply ignore the compensation order altogether.

The present case is, as I see it, one which might well be considered as falling within that sort of criterion or set of standards.  The applicant is a person who is evidently capable of earning money.  According to something that is said in the record or in the written outlines on his behalf, he owns, or at the time of his arrest owned, a car.  The period after the suspension of his sentence of imprisonment comes into effect is six months in all, and one would expect him to be able to find $120 in that time in order to meet the compensation order.  If he does not, it is simply because he chooses not to do so, and I have no doubt that, in fixing what may otherwise appear to be a fairly heavy default penalty, the Judge had it in mind to create as strong an inducement as possible to comply with the compensation order.

While, therefore, not suggesting that a default penalty of that dimension is ordinarily proper, or is a proper way of approaching cases where compensation orders are made, this is not an instance in which I can see that any injustice was done to the applicant by or from the making of the order concerned.  In these circumstances I can see no justification for altering the sentence, and I would dismiss the application.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

McPHERSON JA:  The application is dismissed.

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