R v Hewitson

[1992] QCA 28

COURT OF APPEAL	[1992] QCA 028
PINCUS JA McPHERSON JA THOMAS J.
CA NO 13 OF 1992
THE QUEEN
v.
KARL RICHARD HEWITSON	Appellant
BRISBANE ... DATE 26/2/92

JUDGMENT
PINCUS JA: This is an application for leave to appeal against
sentence. The applicant was born on 26 September 1969 and was 21
years of age when he committed the offence for which he was
sentenced. This was that he broke and entered on 24 June 1991
the dwelling house of one James Hewitson, and attempt to commit
an indictable offence therein.

A peculiarity of the case is that James Hewitson is the applicant's father. According to the matters placed before the District Court, the applicant broke into his father's house and stole electrical equipment to the value of about $6,000, which he later sold for $500.

It appears that on the evening before, the applicant had asked his father to transport him to Burleigh Heads to undertake new employment. His father was unable to do so and an argument broke out which, together with other difficulties, caused the applicant, so his counsel said below, to "leave the Gold Coast the next morning". His father subsequently found that the house had been broken into and reported the matter to the police.

Some weeks later, they found out who had committed the offence and apprehended the applicant. He admitted the offence and told the police he committed it because he needed the money to leave the Gold Coast, as he was in trouble with the law and there were people looking for him. The trouble with the law was not identified, but one may speculate that it may have included unpaid fines or restitution.

The Judge below was told that when the father discovered who had committed the offence, he sought to have the matter dropped by the police, but that proved to be impossible. He was told that the applicant had never had any difficulty finding employment. He had initially been an apprentice spray painter, but the apprenticeship was cancelled through no fault of his and he then obtained other similar employment. Counsel said that the applicant "indeed was employed as spray painter as recently as last Friday". His Honour remarked that the offence was a very serious one and pointed out that the applicant had stolen from his own father's house. His Honour mentioned that remorse had been indicated, but nevertheless ordered the applicant be imprisoned for two years.

In this Court, counsel for the applicant, Ms. Wenck, suggested that the case was one appropriate for probation and counsel for the Crown did not dissent from that. It seems clear that the Judge sentenced the applicant to a term of imprisonment because of his past record. But as counsel for the Crown fairly pointed out, the offences of dishonesty shown had all been committed three years or more before the present offence. To put that more positively, there seems to have been a period from 18 to 21 years of age when the applicant, having obviously behaved badly as a youth, had committed no offences, so far as his record shows. He was once imprisoned for failure to answer a charge of stealing; that was a term of three months' imprisonment.

I have noticed that the criminal record shows no other offences of breaking and entering and it seems to me to be a matter of considerable significance that the present offence arose out of a dispute between father and son. There is not before this Court material which would suggest that the applicant is a person who is likely to commit further breaking and entering offences, that is, offences against the general community.

In the circumstances, it is my view that we should accede to the suggestion made by Ms. Wenck and make an order for probation. The order which I would propose is that the Court grant leave to appeal, allow the appeal, set aside the sentence imposed, and sentence the applicant to a term of imprisonment commencing on 12 December 1991 and terminating today, 26 February 1992 and in addition, make a probation order under s 197 of the Corrective Services Act 1988 in the form No. 29 set out in the regulations.

I would propose that the probation order be for a term of three

years.

McPHERSON JA: I agree with the reasons and with the order proposed by the Presiding Judge.

THOMAS J: I agree.

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