R v Hearn

[1992] QCA 76

JAMES DARRYL HEARN	Applicant
BRISBANE
... DATE 31/3/92

COURT OF APPEAL [1992] QCA 076

MACROSSAN CJ McPHERSON JA WILLIAMS J

CA NO 325 OF 1991

THE QUEEN

v.

JUDGMENT conviction in November 1991. The offence was one of unlawful possession of a prime mover motor vehicle; the offence being committed in June of that same year. The learned sentencing Judge ordered that the applicant serve a custodial term of three and a half years, adding a recommendation that he be considered for parole after he had served 12 months of the term. JUDGMENT

The applicant was a 45-year-old truck driver with a good work record and he had no previous convictions at all. The Judge concluded that the applicant intended to use the vehicle of which he had possession in the course of his business. Obviously, that was the motive for the wrongdoing. The Judge, however, expressed his conviction that the applicant would not ever re-offend. He declared himself as taking into account the plea of guilty that was entered. Although qualifying the effect of that plea somewhat, it appears that the applicant was uncooperative at first.

If it is thought that the sentence imposed was in any way over- severe, the reasons for adopting the course leading to that severe penalty were not explicit. It seems that the Judge was principally influenced, if one can make an assumption safely at all, by the value of the property that was lost.

The vehicle was constructed to pull a refrigerated van. The value was said to be some $94,000. That value we may think was lost to the finance company since the vehicle had been on hire purchase, but there was some suggestion that the applicant may have paid a substantial sum for the vehicle when it came into his possession.

In view of the particular circumstances in this case, I have reached the conclusion that this Court should interfere. The applicant spent a time, although a very short one, in custody, some four weeks, waiting to be dealt with. There is evidence that following the sentence he became bankrupt because he was no longer able to conduct his own business. I am influenced by the Judge's firm conviction which he expressed that this first offender would not ever re-offend.

Overall, in the circumstances of this case, I am of the view that the sentence was manifestly excessive. I would accordingly allow the application and set aside the sentence and recommendation imposed below and order that in lieu the applicant be sentenced to a custodial term of two years and that he be recommended for

parole after serving nine months of that term. proposed by the Chief Justice.

WILLIAMS J: I agree.

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

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