R v Hunia

[1994] QCA 370

IN THE COURT OF APPEAL [1994] QCA 370

SUPREME COURT OF QUEENSLAND

C.A. No. 308 of 1994.

Brisbane

[R v. Hunia]

T H E Q U E E N

v.

JOSEPH CHARLES HANIORA HUNIA

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

_______________________________________________________________

Pincus J.A.
McPherson J.A.

Cullinane J.

____________________________________________________________
Judgment delivered 20/09/1994

Judgment of the Court

Subject to the provisions of ss. 95 and 96 of the Penalties &
Sentences Act 1992 the following orders are made:
1.Appeal allowed;
2.Sentence below varied by adding in respect of each offence,

that a probation order be made for a period of 2 years commencing today, in addition to the community service ordered by the primary judge.

CATCHWORDS: CRIMINAL LAW - SENTENCE - Attorney-General Appeal - arson and attempted false pretences - respondent arranged to have vehicle recently purchased by loan disposed of - reported stolen -respondent made insurance claim to relieve him of the debt - fraud discovered - early plea of guilty - respondent 21 years at time - some prior offences of dishonesty - sentence 240 hours community service - whether excessively lenient -whether term of probation should be imposed in addition.

Counsel:Mr D Bullock for the appellant.

Ms K McGinness for the respondent.

Solicitors:Director of Prosecutions for the appellant.

Legal Aid Office for the respondent.

Date of hearing:12 September 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/09/1994

This is an appeal by the Attorney-General against the sentence imposed upon the respondent on the ground of its inadequacy. The respondent was sentenced to 240 hours community service in respect of each of two offences, arson and attempted false pretences; the sentences were concurrent, so that the total service required was 240 hours.

Both offences related to a motor vehicle which the respondent had bought. He arranged to have the vehicle taken away and burnt, and then dishonestly claimed a sum for its loss, from his insurance company. The company by its agents discovered the fraud and, one may infer, brought in the police.

In more detail, what happened was that in October 1993 the respondent bought a second-hand Holden car for $13,600; a finance company supplied funds by way of loan, and the amount, including interest and other charges, which the respondent became obliged to pay was $15,072. Two months after he bought the vehicle the respondent reported the vehicle to the police as having been stolen from outside his place of work and later that night the vehicle was found, completely burnt out. In fact it had not been stolen; the respondent had arranged to have it taken away from his place of work and disposed of. He made a claim on his insurance company, alleging that the vehicle had been stolen. Inquiries which the insurer made aroused its suspicions and the matter was investigated privately on their behalf, with the result that in January this year the respondent admitted to the insurance investigators that the insurance claim was fraudulent. He told them that he had wished to rid himself of the car because it was damaged in an accident, and also to be free of the obligation he had under the loan agreement relating to the car.

But when the police were called in, the respondent changed his story and denied the truth that what he had told the insurance investigators was correct. Ultimately, however, the respondent pleaded guilty and the Crown conceded at his sentencing hearing that the plea was early.

Counsel for the respondent told the sentencing judge that the respondent was then unemployed, but had previously been in employment. He was born on 28 July 1972 and so was 21 years of age when the offences were committed. He has a record of having committed four offences in New Zealand when he was 17 years of age. Of those, three are described in the record as "burgles by day", and one as "burgles by night". The record indicates that the sentences for these offences were some type of supervision and also an order that he undertake community work.

Ordinarily, one would expect a custodial term to be imposed in relation to an offence of this kind, especially since these offences were not the first offences involving dishonesty which the respondent has committed. That is so despite the mitigating circumstances: the early plea of guilty, the respondent's youth, and that the vehicle which was destroyed belonged to the respondent himself. As to the last factor, there may be something to be said for the view that a fraud which is designed to produce a cash profit appears more heinous than one like the present, whose purpose was to relieve the respondent of a burden of debt which he did not think himself capable of bearing.

We were informed that the respondent has so far satisfactorily completed almost half of the community service ordered by the sentencing judge. In these circumstances we have had some difficulty in determining what course to take; a relatively short term of imprisonment might be a good lesson for the respondent, who seems inclined to seek dishonest ways out of his troubles. But there is a possibility that, given a further opportunity, the respondent will continue along a better path if not sent to prison.

Nevertheless, we are of the view that the sentence imposed was excessively lenient. Once the community service order is completed, the matter will be over, so far as the respondent is concerned, without any considerable hardship having been suffered on his part. We take the view that an order should have been made having the effect of keeping the matter hanging over the respondent's head for a substantial period. We propose that the sentence be varied by adding to the community service orders in respect of each offence a probation order for a term of 2 years commencing today, subject to compliance with the terms of s. 95 of the Penalties and Sentences Act 1992 and to the respondent agreeing to the order being made, under s. 96. No doubt it will be explained to the respondent under the former provision that the order will require that he not commit any other offence during the period of the order, and that if the order is revoked, he is liable to be re-sentenced for these offences.

Subject then to compliance with ss. 95 and 96 of the Act,

the orders of the Court will be:
1.Appeal allowed;
2.Sentence below varied by adding in respect of each offence,

that a probation order be made for a period of 2 years commencing today, in addition to the community service ordered by the primary judge.