R v Johns

[1996] QCA 308

[1996] QCA 308

COURT OF APPEAL
DERRINGTON J
MACKENZIE J

WHITE J

CA No 286 of 1996
THE QUEEN
v.

MARK SHANE JOHNS Applicant

BRISBANE
..DATE 31/07/96
310796 D.1 T10/KE9 M/T COA174/96
DERRINGTON J: This is an application for leave to appeal. The
applicant is 29 years of age and was convicted on two counts;
one of stealing a motor vehicle and the other of false pretences
in relation to the disposal of that motor vehicle.

The circumstances are fairly simple. In a false name he obtained finance from a finance company and purchased a motor vehicle. After just three payments he disappeared with the motor vehicle which he subsequently sold to a private person. The loss to the finance company was in excess of $10,000 and the loss to the private purchaser, who had to give up the vehicle when its identity was discovered, was $6,900.

The offences occurred in about 1990 but the applicant was not dealt with until 5 March of this year. In the meantime, he had been apprehended by the Federal Police but had been taken to New South Wales to answer a number of charges there for which he was imprisoned. He escaped from imprisonment while he was there and was sentenced to a further period of fifteen months imprisonment but served, apparently, some two months.

It was after his release there that he returned to Queensland and was subsequently apprehended in respect of these counts and brought before the Court. He pleaded guilty on each count.

He has an extensive record of dishonesty and there would be no question, at all, relating to the weight of the sentences, if the intervening imprisonment in New South Wales had not taken place. The only argument which is advanced on behalf of the applicant, by his learned counsel, is that if he had been dealt 310796 D.1 T10/KE9 M/T COA174/96

with on these counts at the time that he was dealt with in respect of the matters for which he was imprisoned in New South Wales, he would not have received a sentence that would have added to that sentence by some two years - or even, it is suggested, nine months.

He has already served some six months imprisonment now in respect of these matters and it is argued that it would be appropriate, therefore, to suspend the balance of his sentences.

With respect, I do not agree. Having regard to the extensive record of dishonesty; the fact that the offences involved here were substantial in the loss sustained by the victims of his offences; and having regard to his failure to seek to have the matters dealt with at an earlier stage; it is my view that the affect of this sentence, although it might be regarded as cumulative, is not manifestly excessive.

It is correct to look upon these sentences as cumulative to those which were imposed upon him in New South Wales, but that does not mean that they are manifestly excessive. In my view, if he had been dealt with at that time, in respect of these matters as well, he would reasonably have expected his sentences to have resulted in his imprisonment for a further period of about the order which he now experiences.

It cannot be said, therefore, that the present sentences are
manifestly excessive and I would dismiss the application.
310796 D.1 T10/KE9 M/T COA174/96
MACKENZIE J: I agree that the sentences are not manifestly
excessive and that the application must be refused. To the
extent that the submission relates to the aspect that, had he
been dealt with at the same time as he was dealt with in New
South Wales, for the present offences, it was questionable
whether he would have received substantially more imprisonment,
I would only say that there is a concession, rightly made by Mr
Williamson, that there is nothing to suggest that the applicant
was anxious to have the present matters dealt with or that he
took any steps to be returned to Queensland to have them dealt
with.

At the end of the day, the learned sentencing Judge was not satisfied that the delay in bringing the matter forward was the fault of the police or prosecuting authorities and, having regard to the circumstances of the matter, I am of the view that the sentence imposed was appropriate and therefore not manifestly excessive.

WHITE J: I agree that the application for leave to appeal should be dismissed for the reasons given both by the learned presiding Judge and those of Justice Mackenzie.

DERRINGTON J: The result is that the application for leave to appeal is dismissed.

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