R v Harrison

[1992] QCA 118

COURT OF APPEAL [1992] QCA 118

MACROSSAN CJ
DAVIES JA

McPHERSON JA

CA No 341 of 1991

THE QUEEN
v.

CRAIG JAMES HARRISON

BRISBANE

... DATE 29/04/92

JUDGMENT

JUDGMENT

McPHERSON JA: On 13 November 1991 the applicant was charged in the Magistrates Court at Ipswich with one count of unlawfully using a motor vehicle. The offence had been committed some two years before the date of his appearance on that occasion. The vehicle in question was taken from a hotel. It was recovered a day or so later. The door lock and the steering mechanism had been interfered with, no doubt for the purpose of stealing it.

When the applicant came before the magistrate on 13 November 1991 the sentence imposed upon him was one of imprisonment for 12 months, cumulative on the current prison term being served by the applicant at that time.

The applicant was 25 years old, or thereabouts, at the time of sentence. He has a large number of previous offences. They include some 31 burglaries in Victoria between 1978 and 1980, wilful damage, convictions involving prohibited plants and cannabis, and, then, when he emigrated to Queensland, a series of break and enters numbering somewhere between 10 and 25 in all. The record of convictions is really far too long, consisting of some 45 pages of recorded items, to justify or merit further attention in detail.

The subject offence, that is the unlawful use of the motor vehicle, was committed shortly before the applicant in June, 1990, sustained a substantial period of imprisonment, amounting to some three years concurrent, in the District Court at Grafton, New South Wales, for a series of breaking and entering, burgling, and similar offences.

The offences with respect of which he was sentenced on that occasion in June, 1990, had been committed in January 1990. It was submitted on behalf of the applicant that if the present offence had been before the Court at Grafton on that occasion in June 1990, it would have attracted no further penalty at all; and accordingly the Court - the Magistrates Court at Ipswich - had acted incorrectly in making the sentence of 12 months imposed in respect of the unlawful use cumulative upon the existing sentence which the applicant was serving.

In this regard one may notice also that the applicant came before the District Court in Brisbane on 27 September 1991, and received on that occasion a further sentence in respect of eight charged of breaking and entering committed on 29 August 1988. The information in the criminal history record before us suggests that the sentence imposed on that occasion was 12 months' imprisonment concurrent, which must refer to the eight charges of break and enter being dealt with on that occasion, but that it was also made concurrent with the present sentence he is serving.

From information we have from the Bar table, I think the record is probably inaccurate in that respect, in that that 12 month sentence was made cumulative on the existing sentence which the applicant would have been serving at that time, in consequence of his being dealt with before the District Court at Grafton.

The result of all this is, in my view, as follows. The Magistrate, although entitled to make the sentence in respect of the unlawful use charge cumulative upon the existing sentences being served by the applicant, was not justified in imposing in respect of it a sentence for a duration as long as 12 months. He ought, in accordance with well-known principles, have taken into account the circumstances of the applicant's existing prison terms, so as to avoid making the sentence so imposed unduly disproportionate to those other sentences of imprisonment being undergone by the applicant.

Twelve months for a single count of unlawful use of a motor vehicle in the context of all these other sentences does appear to me to be disproportionate. I would, therefore, allow the application for leave to appeal; and allow the appeal and reduce the sentence in respect of the offence the subject of this application from 12 months to three months, leaving it as cumulative on existing sentences.

THE CHIEF JUSTICE: I agree.

DAVIES JA: I agree.

THE CHIEF JUSTICE: That will be the order of the Court.