R v King

[2001] QCA 419

[2001] QCA 419

COURT OF APPEAL

McPHERSON JA
THOMAS JA
JONES J

CA No 164 of 2001

THE QUEEN

v.

VIVIAN JOY KING  Appellant

BRISBANE

..DATE 02/10/2001

JUDGMENT

McPHERSON JA:  The applicant in this instance, who appears in person on her appeal as it is against conviction and on her application for leave to appeal against sentence, was convicted in the District Court at Maryborough on a count of breaking, entering and stealing.  The offence occurred on 14 April 2000 and she was tried before a jury and convicted on 22 May 2000.  His Honour Judge Botting imposed a sentence of 18 months' imprisonment.

The circumstances of the offence are as follows.  The principal Crown witness who gave evidence at the trial was the assistant manager of certain motel premises.  On the evening of 14 April 2000 the appellant visited the reception area of the motel and asked if a particular guest was staying at the motel.  She was advised that no such guest was staying there and she left.  A short time later the motel assistant manager heard a noise in the reception area.  She saw the appellant walking out of the door to the reception area which that witness had earlier secured.

When asked what she was doing the appellant responded that she wanted to buy a drink and suggested that the witness had left the door open.  It was then discovered that a flyscreen had been removed from a window to the reception area and that the window was open.  The police were called and the appellant's handbag, on being searched, was found to contain a remote control device for a television set.  It was the subject of the stealing element in the charge with which she was confronted at her trial.  The appellant's fingerprint was located on the window.

At the trial the appellant gave evidence.  She said she'd been looking for a guest and she seems to have admitted that she'd entered the reception area through the window.  Her explanation was that she'd been looking for a key to the room in order to find the guest.  The appellant suggested that this particular person could assist her in her relationship, which was one involving, so she said, domestic violence.  The appellant's explanation for having possession of the remote control device was that she had accidentally put it in her handbag.

The only issue for the jury's consideration at the trial was whether the property had been taken by the appellant with the requisite intent.  It would have been an extraordinarily credulous jury to have accepted the applicant's account or even treated it as raising a reasonable doubt.  They duly found her guilty, and in my view their verdict was fully justified by the evidence.  The appeal against conviction cannot in my view succeed and should be dismissed.

That leaves for consideration the question of the sentence, with respect to which the applicant has really asked us to add a recommendation for parole at an earlier date.  The offence was a bold one, audacious in the way it was carried out, and in the way in which she sought to excuse herself from criminal responsibility in doing so.  The excuse would, as I have already suggested, hardly have persuaded anyone but at any rate she was prepared to put it forward.  The sentence is not either to my mind a short one or a long one for the offence involved; but its imposition was plainly called for when one looks at the extent of the applicant's criminal history.

So far as the record is concerned, she began with a conviction in 1983 in the Sandgate Magistrates Court for wilful damage to property.  It was followed over the next ensuing two years or so by five convictions for prostitution or using premises for the purpose of prostitution.  In 1986 she was convicted of assaulting and resisting police.  In 1987, 22 charges of imposition.  Then she was brought before the Court in 1998 for breach of the Bail Act, for stealing, and for attempted possession of a dangerous drug, together with possession of a dangerous drug, stealing and receiving.

In 1989 there were charges of obscene language, resisting police, assaulting police, breach of the Bail Act and, again in that year, aggravated assault on a female child under the age of 17 years, stealing, unlawful assault, and wilful damage.  In 1990 she was charged and convicted of stealing coupled with unlawful assault. 

Then, in 1990 again, she committed an assault with intent to steal using actual violence while armed with a dangerous weapon, for which she was sentenced to imprisonment for three years.  She informed us that she served the full duration of that sentence.

In 1992, after she had been released, she was convicted of assault occasioning bodily harm and sentenced to a months imprisonment and, in 1995, there were convictions for possession of dangerous drugs and supplying a dangerous drug to someone else.  In 1996, there were breaches of a probation order and a community service order and, in 1996 again, two counts of stealing. 

She was dealt with in 1997 for false pretences and placed on probation for two years.  Again in 1997, she was convicted of assault occasioning bodily harm and stealing.  In 1998, there were various offences of obscene language, obstructing police, and so on and breach of a suspended sentence.  In 1999, she was before the court in Maryborough for unauthorised dealing with shop goods.  

Since then, there has been a breach of probation order in Maryborough and breach of a domestic violence order in Brisbane.  Again in Maryborough, there was breach of a fine option order which arose out of the earlier breach of probation.  Finally, in 2000, the appellant was apparently convicted and sentenced for ill treatment and neglect of a child.  

When all these matters are taken into account and having regard to the opportunities for reform which have been provided to the applicant in the past, it seems to me that the time had come when it was appropriate to impose a sentence of imprisonment of the duration of that fixed by the Judge in the present case.

From what the applicant has told us here, conditions in the prison are much improved, in the sense that now the inmates are receiving some instruction and assistance, and it may be that the time fixed by the Judge in this sentence is about right for the purpose of ensuring that this unfortunate young woman makes something better of her life in the future than she has done in the past.

I would therefore dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

THOMAS JA:  I agree.

JONES J:  I agree.

APPELLANT:  Excuse me, your Honour, you read out these charges.  One of them I had not been released from prison and commit an assault.  I was actually in gaol, the one for one month.  One of the orders for breach of probation and breach of parole, that was dismissed‑‑‑‑‑

McPHERSON JA:  All right.

APPELLANT:  ‑‑‑‑‑at the Courts.  As for the fine, I went to Court and I got fined.  I was doing community service and got a ashtray thrown at me by Mr Rainbow, went to Court and asked for the community service be turned back into a fine and since then I've come into custody, so I've had to serve the time. 

McPHERSON JA:  All right.

APPELLANT:  Yes.

McPHERSON JA:  Well, I don't think that makes very much difference.  Thank you for the information but that will be all.  You may go now.

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