R v Jackson

[1995] QCA 608

COURT OF APPEAL

[1995] QCA 608

FITZGERALD P
DAVIES JA
THOMAS J

CA No 382 of 1995

THE QUEEN

v.

KYLIE MAREE JACKSON  Applicant

BRISBANE

..DATE 06/12/95

JUDGMENT

THE PRESIDENT:  On 12 November 1993 the applicant was convicted on eight counts of false pretences and one of stealing on dates between 4 November and 10 December 1992 for the first eight counts. 

She was placed on probation for three years and ordered to make full restitution of $1,204.50 over a period of one year and nine months.  She reported to her probation officer and otherwise complied with the terms of her probation until 8 March 1995 by which time she had only paid $122.50 in restitution.

She was accordingly brought back before the District Court at Brisbane, the Court which had originally sentenced her on
15 September 1995 charged with a breach of probation on
18 March or 8 March 1995, the date is a little unclear.

On that occasion she was sentenced to imprisonment for nine months suspended after three months with an operational period of five years and it was ordered that compensation of $801.50 and $403 be paid within one year and nine months in default imprisonment for six months.

She has served six days of the period of imprisonment imposed after which she was released on bail and has made an application to this Court for leave to appeal against her sentence.  The offences involved the taking of goods from Target or Myer's shops without paying for them and then returning the goods and obtaining a refund.

The applicant was 17 years of age at the time she committed the offences and was 20 years of age at the time she was resentenced having been born on 17 February 1975.  During the period of her offending she had another conviction, that is her offending in 1992, another conviction for similar conduct and she committed another similar offence earlier while on bail for the present offences but those matters were all prior to the original sentence.

She has not offended since she was sentenced originally on 12 November 1993 and her failure to report to her probation officer and to make compensation seems to be directly related to her personal circumstances.  She had moved to a new area, Riverview, after complying with the probation order for about 15 months and then she had difficulty complying with the orders and with the orders for restitution because of her location and the fact that she was a poor financial manager with a young baby.  She had no baby sitters, no transport and no money.

At the time she was sentenced on this occasion, that is in September this year, she had the sole care of two small children, one who was only 12 months old at the time she breached probation.  The applicant submitted that the sentenced imposed on her was manifestly excessive. 

The matters referred to by the sentencing Judge when noted namely that she had failed to comply although she understood the obligation to her probation that her original offences were moderately serious with an underlying systematic aspect and His Honour said that it was more difficult to find leniency when she had messed up the chance that she was given.

While all those matters have some force, in my opinion, it is a clear case in which the sentence imposed was manifestly excessive and the application should be allowed, the appeal allowed and the sentence set aside and the applicant resentenced.

Once this point was reached there was really little dispute between counsel as to what was an appropriate course and it was submitted to the applicant that a period of imprisonment of six months wholly suspended for two years with no order for compensation would be appropriate.  I agree and that is the order which I would make.

DAVIES JA:  I agree.

THOMAS J:  I agree.

THE PRESIDENT:   The order is application granted, appeal allowed, sentences imposed below set aside.  Order that the applicant be imprisoned for six months with the term of imprisonment wholly suspended for a period of two years.  No other order.

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