R v Harrison

[1994] QCA 396

[1994] QCA 396

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

AMBROSE J

CA No 241 OF 1994
THE QUEEN
v.

STEPHEN KEN HARRISON

BRISBANE
..DATE 22/08/94
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DAVIES JA: The applicant was convicted on his own plea in the
District Court at Southport on 7 June this year, on six counts
of breaking, entering and stealing; one of unlawful use of a
motor vehicle with circumstances of aggravation and one of
wilful damage to property. In respect of the offences of
breaking, entering and stealing, he was sentenced to four
years' imprisonment. In respect of the unlawful use of a
motor vehicle offence, he was sentenced to two years'
imprisonment, and in respect of the other offence he was
sentenced to 12 months' imprisonment.

At the time of the commission of these offences, which were between 10 September and 10 October last year, the applicant was 24 years of age. He is now 25, and was at the time of sentence, having been born on 20 March 1969. He seeks leave to appeal against the sentences which were imposed on him, in effect, against the harshness of those sentences - that is, the four years in respect of the breaking, entering and stealing offences.

The applicant had a considerable number of previous convictions for offences. In particular, he had been convicted of several offences of dishonesty, the most serious of them being a receiving offence in 1988. In September 1988, he was then convicted on 16 charges of breaking, entering and stealing and one of attempted breaking, entering and stealing.

On 19 June 1989, he was convicted of unlawful use of a motor

220894 T 7-8/SRM M/T COA94/233
vehicle. On 5 November 1991, he was convicted of unlawful use
of a motor vehicle and stealing.

On that occasion, he was sentenced to probation for two years and ordered to serve 240 hours of community service. That order for probation was breached in February 1992. It was submitted to us, and it appears to me to be correct, that that must have been a breach not consisting of another offence, because there is no record of another offence, and probably a breach not sufficient to have any effect on the probation order which continued. That means that when the applicant committed the first of the offences, the subject of this application, he was still on probation, although at that stage it was towards the end of his probation period.

The circumstances for which the applicant was convicted were
that in September he committed offences of breaking, entering
and stealing. The goods which he stole on that occasion and
those which he stole in October were goods which were readily
resaleable and which it appears were in fact resold. The
offence committed in October was committed with his brother.
They broke and entered a service station and on that occasion
stole cigarettes, and on that and on the previous occasions
cash was also stolen. On this occasion a stolen car was used,
and the service station was broken into by the battering off
the door of the service station by the stolen car. The total
value of property stolen and damaged exceeded $20,000.
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The learned sentencing Judge described the offences committed
by the applicant, both in September with other offenders and
with his brother in October, as involving a degree of
professionalism, and that seems to be an accurate description.

The offences were undoubtedly of a serious kind. The

sentence, on the other hand, appears to me to have been a high
one and Mr Bullock for the Crown concedes that it was a high
sentence, but nevertheless submits that it is supportable.
There is no doubt, in my view, that the offences were serious
offences and required a sentence towards the higher end of the
permissible range.

The learned sentencing Judge described the applicant and his brother as a menace to society, and there is some justification for that view. However, the applicant is a young man, 24 as I have said at the time of the offences and 25 now, and although he has been convicted of similar offences before this is the first occasion upon which he has been sentenced to gaol. It was also submitted on his behalf that he admitted his involvement in the offences and cooperated with the police by implicating his brother in the commission of the October offence.

There is some doubt as to whether in fact at the time of the commission of the October offence the applicant was on bail.

He had in fact at least been spoken to after the commission

of the September offences by police and may indeed have
admitted his involvement in those offences to the police at
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that time. However, there is nothing in the record before us
and neither counsel can assist us on the question of whether
in fact, when he committed the October offences, he was also
on bail. Nevertheless, it makes the October offence even more
serious that he had already been apprehended, or may at least
have been apprehended, and was certainly spoken to by police
in respect of the September offences.

The applicant's brother who, as I have said, was involved in the October offence with the applicant but not in respect of the first five offences which were committed in September, was

also sentenced to four years' imprisonment. He was older than
the applicant and had a much more serious criminal record,
having served a number of gaol sentences for offences of this
and similar kinds. It was pointed out to us by Mr Bullock
that the sentence which was imposed on him was cumulative upon
a sentence which had been imposed upon him on an earlier
occasion, a sentence which is due to expire on 26 February

1995, and that that was a distinguishing factor.

On the other hand, the applicant's brother was convicted at
the same time of two other offences involving dishonesty. It
is true that this was the only one which involved a
professional element of criminality, in the sense of involving
a strong commercial element. But it seems to me that the
brother's very much worse criminal record and the fact that he
has served gaol sentences on previous occasions, distinguishes
him from the applicant in this respect.
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Having regard to the applicant's age, the fact that he has not previously been sentenced to imprisonment at all, and also to the fact which was mentioned during the course of argument before the learned sentencing Judge that during the period in which he has served imprisonment prior to the sentence being imposed there was some indication that imprisonment has had a sobering effect on the applicant, I would be inclined to alter the sentence which was imposed below, only to the extent of adding a recommendation that the applicant be eligible for parole after serving 12 months of that sentence.

CHIEF JUSTICE: I agree.

AMBROSE J: I agree.

CHIEF JUSTICE: The order of the Court will then be as has been indicated by Mr Justice Davies.

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