R v Hatfield

[1992] QCA 179

COURT OF APPEAL	[1992] QCA 179
MACROSSAN CJ DAVIES JA DERRINGTON J
CA NO 48 OF 1992
THE QUEEN
v.
ROBERT JOHN HATFIELD	Appellant
CA NO 47 OF 1992
THE QUEEN
v.
MARK EDWIN LEE	Appellant
BRISBANE
... DATE 13/5/92 JUDGMENT

MACROSSAN CJ: We order that the notices of appeal so far as

they purport to be against conviction a well as against sentence

be dismissed; that leaves them stand in respect of sentence.

DERRINGTON J: The abovenamed were co-accused in respect of a

count of breaking, entering and stealing property valued at $5,600. Both parties appealed against conviction, but that was

inadvertent and the appeals have been dismissed, not having been

processed with, and now it falls to determine their applications

for leave to appeal against sentence.
It is suitable to deal with them separately. Robert John
Hatfield was 29 years of age at the date of the offence, and he

was sentenced to three years imprisonment. He had a serious record of offences extending over the period since 1978, but it might be said that the only time that he was in prison was in 1982 when he was sentenced to 15 months imprisonment and nine

months imprisonment respectively on counts of breaking, entering and stealing and stealing a motor vehicle. Since then he has tended to confine himself to less serious offences until 1988

when he was convicted of breaking, entering and stealing goods which were much of the same type as those which he stole in the present charge. Quite surprisingly, taking into account his

criminal record, he was only fined $1,000 and ordered to perform 200 hours of community service. Apart from some other minor

offences, he was convicted of stealing on 17 April 1990 when he was placed on a $400 one year good behaviour bond which terminated ten days before the present offence.

Despite that criminal history, which is something that he

certainly cannot be proud of, he has some things that might be said to his credit. He resides in a de facto marriage relationship and supports not only his own child but also two children from a previous marriage of one of the partners. In addition to that, he has maintained stable employment and is apparently regarded as a satisfactory worker. It is said also that he co-operated with the police and pleaded guilty, which is

true, and that he should receive some consideration for that. This, however, is substantially mitigated by the fact that he

was caught red-handed with the stolen goods loaded abroad the utility vehicle which he and Lee took to the premises for the purpose of the offence, and even when he was apprehended by the

police in that situation he at first said to the police that the

property belonged with himself. However, when it became

manifest that that story could not succeed, it might be said that he then co-operated with the police and has pleaded guilty,

but it is difficult to see how any reasonable sort of defence

could have been mounted.

Apart from the serious factor of his criminal record, the

learned sentencing Judge observed that this offence is both

serious and prevalent in his jurisdiction. The sentence of three years imprisonment must be said to be at the high end of

the permissible range, but nevertheless within the range of

suitable sentences for an offence of this description, taking into account the criminal history of the applicant.

Nevertheless, if the appropriate regard is had to the following

features, it might be observed that it should have occurred to

the learned sentencing Judge, whilst imposing the head sentence

which he did impose, to have made some recommendation for earlier parole than would be normally the case in order to acknowledge these features. The first is the fact that the applicant has been imprisoned for the offences appearing on his criminal history on only one occasion in the past and that is as far back at 1982. Of course, as against that he has to bear the contrary factors that he has committed some quite serious offences since that time and more particularly a somewhat comparable offence in 1988. The second feature is that he is a man who has at least contributed to the community to the extent of remaining in stable employment and being a reasonable employee in fairly difficult times and he has accepted the responsibility of supporting his wife and their respective children.

In those circumstances, in my view, the head sentence should

remain, but a recommendation should be made that parole be

considered after 12 months.

The second applicant is Mark Edwin Lee. His involvement in the

transaction was very much of the same order as that of

Mr Hatfield. There are points of distinction between them, but

only of a very minor order. The criminal history of Lee is said not to have been as bad as that of Hatfield, and, indeed, that appears to be so in so far as the number of his offences of serious nature against property is not as many, but really it is not a very strong difference.

He was convicted of attempted burglary and four counts of

burglary for which he was sentenced to 12 months imprisonment in

1986. In March 1991 he was convicted of a relatively small

charge of stealing, and a similar offence was committed in October of 1991. In neither of those later cases was he sentenced to imprisonment, and like Hatfield the only occasion that he has served imprisonment is in 1986, some little time

ago. The difference between the two in their respective criminal histories is certainly there, but it is only a relative difference and of very little consequence. Further, because the

criminality of the person who has been sentenced is the more important feature rather than the number of matters that appear

on his criminal history, the learned sentencing Judge was entitled to take into account in respect of Lee that he was sentencing him at the same time on a charge of unlawful use of a motor vehicle committed while he was on bail in respect of this count in respect of which he is now appealing.

The learned trial Judge was entitled to note the attitude of

this applicant towards his social obligations as demonstrated by

his conduct of that nature and take it into amount in his

overall view as to the total criminal history of the man when he

was sentencing him on the relevant count.

He has not worked for a number of years, but that has been

substantially due to an industrial accident which disabled him.
Prior to that time he is said to have had a reasonable work

history but Hatfield may have been given some credit because of

his continuing efforts.

In all the circumstances, there is really no reason to

discriminate between those two applicants if all matters of difference are taken into account in a balancing exercise.

Consequently, the same order should be made in respect of the

appellant, Lee, that is, that the sentence of three years imprisonment should stand, but that a recommendation should be

made that he should be considered for parole after 12 months. Of course, in the light of those results it would be necessary

to grant him leave to appeal against sentence and to uphold the

appeal to that extent.

MACROSSAN CJ: I agree.

DAVIES JA: I agree.

MACROSSAN CJ: The Court's orders will be then as we have

indicated.

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