R v Holness

[2003] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:	R v Holness [2003] QCA 261
PARTIES:	R v HOLNESS, Laura Maree (applicant)
FILE NO/S:	CA No 80 of 2003 DC 466 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX	19 June 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2003
JUDGES:	McPherson and Jerrard JJA, and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - JUDGMENT & PUNISHMENT - CUMULATIVE SENTENCES - OTHER MATTERS - Sentence made cumulative on breached suspended sentence activated by this offending - whether “crushing’ - whether without making sentence cumulative there would be no penalty for this offending
COUNSEL:	J Griffith for the applicant G Campbell for the respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The applicant for leave to appeal against sentence was convicted on her own plea in the District Court at Ipswich. The offences of which she was convicted were three counts of fraud and one of stealing in respect of which the sentence imposed was six months on each count. Those sentences were to be served concurrently but remained cumulative on a period of imprisonment that followed in consequence of breach of a suspended sentence which she was serving at the time.

The result was as regards the sentencing now under consideration an effective sentence of six months with no recommendation for parole which was accumulated upon the two year sentence which had been activated by the breach.

It is, in the way Mr Griffiths has presented the matter to this Court, the accumulation of the six month sentence that is the target of this application.

The circumstances of the subject offence or offences are as follows. On 20th of April 2001 the applicant was sentenced to two years imprisonment suspended for three years in relation to 21 offences of dishonesty. The offences involved 57 transactions or attempted transactions involving a total amount of some $27,134. The offences involved the fraudulent use of other persons' credit card details or alternatively of passing valueless or forged cheques. The applicant was charged and released on bail a number of times during the offending period but she continued to offend.

The subject offences were committed during the operational period of the suspended sentence. On 2nd of April 2002 the applicant was placed on probation for further offences of dishonesty. They were of a similar type to those dealt with on the 20th of April 2001 and had occurred during the same or similar time frame. A further $1,601 was involved in those offences.

A number of the transactions in count 2 of the present indictment were committed in breach of the probation order that had been imposed on the 2nd of April 2002. The transaction referred to in item 11 was committed only four days after the probation order was imposed.

The grounds advanced in support of the application include the fact that the applicant is now 29 and was 28 at the time of the offence. She is a single woman and has two young children aged only two years and five years old and she has had, it appears, a rather volatile relationship with the father of the children.

She did on this occasion cooperate and enter an early plea and she provided information which appears to have been of use to those investigating the offences.

There is a psychiatric report from Dr Perros who holds out some hope for her rehabilitation from her habit of taking drugs which has almost certainly been the immediate cause of the committing of these offences.

So far as those four charges to which she pleaded guilty are concerned, they come down to this, that on the 14th of January 2002 the applicant used a false name and details to have a telephone service connected to her caravan at Amberley. Between the 13th of June 2001 and 31st of July 2002 she used credit card details belonging to the complainant to pay telephone accounts for herself and others. She did this in exchange for drugs and to pay debts. She charged up a total of $2,992 on this account.

Between 16th and 18th March 2002 she stole her brother-in- law's credit card and then used it on some 30 occasions to purchase goods for a total value of $2,257.

She was born in New Zealand and came here with her mother. kind we are discussing, the details of which I have already mentioned. She had a work record which was described in part as working in an office in Brisbane for four years, then working as a stable hand for six months and then as a waitress or barmaid for about two years.

The maximum penalty in these cases is five years for each count of stealing and fraud.

The appellant argues that her Honour's action in making the two children which would arise during the course of her applicant's incarceration. Her mother is in a position to look after them but we were informed from the Bar table that her former partner has failed to return the children after an access visit with the result it is said that the applicant will suffer even greater stress through those circumstances if she is in prison for a longer period.

current sentence cumulative on the two year sentence resulting
from breach of the earlier suspended sentence makes the term
of six months imprisonment a crushing sentence. It is said
that she has now stopped using drugs and has the support of
her mother who lives with her, after having herself been
released on parole.

Despite the applicant's personal difficulties which arouse a natural sympathy, it is not easy to see how it can be said that the sentencing Judge went wrong in making the sentence of imprisonment cumulative on the existing sentence being served. Unless this was done there would be no penalty at all for the later offences which were committed in circumstances that I have already described, that is during the currency of a suspended sentence and then during or partly during the currency of a probation order.

The question with which the Court is confronted here is whether it can be said that the Judge went wrong in exercising her discretion in doing what she did in relation to the six month sentence.

I am unable to see that there was any error in that regard in view of the several opportunities that the applicant was given to cease her criminal behaviour in this regard. Instead she went on with it and inevitably incurred the penalty which follows from ignoring opportunities to avoid going to prison. In the result I would refuse the application for leave to appeal against sentence.

JERRARD JA: The remarks of the learned presiding Judge show that this is a hard and sad case and I consider that his description of those explains why in the circumstance it is not within the power of this Court to change that sentence. I agree with his conclusions.

ATKINSON J: I agree with the reasons and with the order proposed by the learned presiding Judge.

McPHERSON JA: The order is that the application for leave to appeal against sentence is refused.

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