R v Johnson

[1992] QCA 72

VICTOR JOHNSON	Applicant
BRISBANE
... DATE 30/3/92
COURT OF APPEAL	[1992] QCA 072
MACROSSAN CJ DAVIES JA WILLIAMS J
CA No 26 of 1992
THE QUEEN
v.
JUDGMENT appeal against sentence in the case of, one, Johnson who pleaded guilty to a charge of stealing with a circumstance of aggravation. The item in question was a refrigerated trailer van. The circumstance of aggravation was that it was of a value above $5,000. In fact, the evidence shows the van in question had a value of aome $80,000.	JUDGMENT

Johnson was involved with an accomplice called Evans in a scheme to alter the van once it had been stolen in a way to disguise its identity and than sell it. Both Johnson and Evans were of mature years. Evans, I think, was 38 years of age and the applicant Johnson 34. Neither of them had any previous convictions. Evans was sentenced to a lesser penalty. He was sentenced to a custodial term of two years with a recommendation for parole after 6 months. The applicant was sentenced to a custodial term of 3 years with a recommedation for parole after 12 months.

The learned sentencing Judge explained the reason for the distinction which he drew. He stated that he concluded that the applicant's role in the enterprise was the more significant and that he was the director, in effect, of the plan, that he selected the particular van which was, in fact, stolen and that after police intervention in the affair Evans was initially the more co-operative with the police. As well, His Honour accepted that the applicant was to get the greater share of the proceeds.

In sentencing the applicant, the learned Judge said that he was allowing for the fact that the applicant had entered a guilty plea, and that he was allowing also for his previous lack of criminal history. Some attack was made upon the sentence imposed upon the applicant on the basis that too great a distinction was drawn in the treatment of him as compared with that of Evans.

Part of the argument for the applicant involved some detailed challenge to the words of the sentencing Judge in drawing the distinction. At the end of that submission I was not left persuaded that there was a point of particular value in that aspect of it. Most of what the Judge below did say was on closer examination not particularly challenged. One remark which drew some criticism was this statement by His Honour. He, referring to Evans, said he was being engaged to do certain things by Johnson for a set fee.

It was suggested that this view of things was not correct, that it made the matter look like a firm arrangement such as one would see set against a commercial background, but allowing for the fact that His Honour's remarks were delivered extempore after submissions made to him, I for myself do not see any particular point of substance lurking behind them for the applicant to take advantage of.

I think that His Honour was merely meaning to say no more than that the applicant, in some aspects, had an initiating role and that a fee had been spoken of or a return for effort, and in fact that return for effort was less than the applicant spoke of as being the balance of the proceeds. In any event, counsel for the applicant had to concede that the learned sentencing Judge was entitled to make some distinction between the penalties imposed upon the two offenders. He had to content himself in the end with saying that too great a distinction was drawn. Once it is apparent that some distinction may appropriately be drawn, the argument clearly becomes much more difficult when it goes on to urge that the distinction drawn in the present case was too great.

In any event, that is not the end of the matter as far as we are concerned. The sentence imposed on Evans, and I have already stated it, is a lesser sentence than that imposed upon the applicant, and it does not constrain us to refrain from interfering if we think the sentence imposed upon the applicant was in fact excessive.

The age of the applicant and the fact that he had no previous convictions at all, are significant features in this case. Some references were tendered during the hearing which were highly favourable to the applicant. The property, that is the refrigerated van, was recovered without loss to its owner or owners. The applicant, although he acted highly improperly and indeed with a criminality, which calls for condemnation, did act as he did under the pressure of certain financial straints in which he found himself. He was in doubtful health or possibly in doubtful health it would appear. Certainly there is a suggestion that he had been diagnosed as having bowel cancer.

For the Crown, it was said that a deterrent is called for in cases like the present, and with that it is necessary to agree. The duration of the planning, and it was not an instantaneous decision to act as they did, was again said to be something to be visited with a certain severity in the sentence. It was also said that the value of the property stolen was a relevant factor, and there was the intention to deal with the property by altering it and selling it on, a matter which it was said also had to be taken into account. Well, one must agree with those submissions made on behalf of the Crown in this case as well.

Nevertheless, I am of the view that having in mind the factors which call for som amelioration of the penalty which I have already recited, the head sentence imposed in the present case for this first offender should be regarded as being excessive. Accordingly, I would be disposed to allow the application and the appeal against sentence, setting aside the sentence imposed below and in its place sentencing the applicant in lieu to a term of 12 months imprisonment. I would not add any recommendation in that case.

DAVIES JA: I agree.

WILLIAMS J: My view that the orders proposed by the learned presiding Judge are correct is confirmed by a consideration of the decision of the Court of Criminal Appeal in The Queen v. A R & W K McDonald, CA No.'s 165 and 166 of 1991, judgment delivered 9 December 1991.

In that case two brothers of mature age, neither of whom had prior convictions, were involved in the highly organised and very sophisticated theft of a KATO Excavator from a remote mine site.

The criminal excapade involved the driving of a low-loader many miles to a point where its engine number and identification plate were altered preparatory to its disposal; and other incidents which need not be narrated now but which went into that particular crime. Each was sentenced to three years' imprisonment.

The Court said, "Given the sophistication and organisation which went into the commission of this particular offence, the nature of the property stolen, and the locality from which it is stolen, we are not of the view that, even taking into account the previous good character of the appellants, the sentences imposed were outside the permissable range. We are not of the view that the sentences are manifestly excessive.

It is clear that here the circumstances, as outlined by the learned presiding Judge, are nowhere near as serious as those involving the McDonalds. When one compares the two it reinforces, as I say, the view the sentence here was manifestly excessive and I agree with the orders proposed.

THE CHIEF JUSTICE: The order then will be as I have indicated.

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