R v Heydon

[1997] QCA 400

IN THE COURT OF APPEAL	[1997] QCA 400
SUPREME COURT OF QUEENSLAND

C.A. No. 363 of 1997

Brisbane

[R v Heydon]

T H E Q U E E N

v

RICHARD JOHN HEYDON

(Applicant)

Davies JA
de Jersey J

Muir J

Judgment delivered 4 November 1997

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	Sentence application - suggested disparity between treatment of co- offenders.
Counsel:	Mr R. Collins for the applicant Mrs L. Clare for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	28 October 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 4 November 1997

When aged 21 to 22 years, the applicant committed a number of offences, 9 counts of unlawful use/possession of a motor vehicle and 13 counts of unlawful use/possession of a motor vehicle with a circumstance of aggravation. He pleaded guilty, and was sentenced in the District Court to 3 years imprisonment suspended after 10 months for an operational period of 4 years.

His younger brother, Andrew, then 18 years old, was also involved in this activity with the applicant, described as “an organised car ring”. The applicant and his brother were recruited by an experienced criminal, one Stockton, who used them together with another criminal, Uren, to meet orders placed by “buyers” for stolen vehicles. Andrew's role was to steal the cars, the applicant being involved in their “reidentification”.

The applicant's offences led to a total loss of $42,648. The brother Andrew pleaded guilty to 24 offences of unlawful use, involving a total loss of $78,717. He was sentenced together with the applicant. He had no prior criminal history, and was sentenced to 27 months imprisonment, but wholly suspended.

The applicant did have relevant prior criminal history, including a conviction for the possession of a dangerous drug, and a conviction for breaking, entering and stealing, both offences committed about a year before these offences.

Mr Collins, who appeared for the applicant, submitted that the penalty imposed upon the applicant was manifestly excessive, and the development of that submission focused on a suggested undue disparity between the treatment of the brothers. There was however reason why the judge could properly distinguish as he did. In the first place, there was a significant age difference, notwithstanding that the applicant was still himself a young man. Second, the applicant had relevant prior criminal history, whereas his brother had none.

Mr Collins submitted that the learned judge nevertheless made inadequate allowance for the applicant's successful completion of probation. As he asserted: “Rehabilitation of the applicant had successfully taken place. The applicant has always had gainful employment, and has been supporting a defacto wife and three children.” The judge was referred to those circumstances, and they did not themselves operate to render the treatment given to the applicant unduly severe, or sufficiently out of kilter with the treatment given to his brother as to warrant interference.

It remains to mention that there was some delay within the office of the Director of Public Prosecutions in the processing of this matter, and that general consideration may be relevant (The Queen v Law C.A. 176 of 1995, 6 October 1995), but again, the judge was aware of that matter, and there is no reason for thinking that he did not properly take it into account.

The application is refused.