R v Lake

[1993] QCA 311

IN THE COURT OF APPEAL [1993] QCA 311

SUPREME COURT OF QUEENSLAND

C.A. No. 212 of 1993

Brisbane
[R. v. Lake]

BETWEEN:

T H E Q U E E N
v.
HAROLD JOHN LAKE

(Applicant)

The President
Mr Justice Ambrose

Justice White

Judgment delivered 24/08/93
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE SENTENCES IMPOSED BELOW. IN LIEU THEREOF, SUBSTITUTE SENTENCES OF IMPRISONMENT FOR 1 MONTH ON THE COUNT OF STEALING, AND 2 MONTHS ON THE COUNT OF WILFUL AND UNLAWFUL DAMAGE TO PROPERTY, TO BE SERVED CUMULATIVELY.

CATCHWORDS:	CRIMINAL LAW - Sentence - Applicant ordered to perform community service for wilful and unlawful damage to taxi - While subject to order, stole alcohol - Extensive criminal history - sentenced to imprisonment for 1 month for stealing, 2 months for wilful damage, to be served cumulatively.
Counsel:	Mr. P. Hardcastle for the applicant Mr. J. Henry for the respondent
Solicitors:	Aboriginal Legal Aid Office for the applicant Director of Prosecutions for the respondent

Hearing Date: 19/08/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 212 of 1993

Before The President

Mr Justice Ambrose

Justice White

[R. v. Lake]

BETWEEN:

T H E Q U E E N

v.

HAROLD JOHN LAKE

(Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24/08/93

The applicant has applied for leave to appeal against sentences imposed upon him in the District Court at Charleville on 2nd and 3rd June 1993.

On 20 February 1992, in the course of an argument over a fare, the applicant punched and kicked a taxi vehicle, causing $397.00 damage. On 30 October, 1992 he was ordered to perform 100 hours community service and, as a condition, was ordered to pay $397.00 compensation by 1 March 1993. He failed to pay the compensation and performed little of the community service which had been ordered.
On 23 March 1993, the applicant and another man stole a small quantity of liquor from a hotel. At that time the appellant was still the subject of the community service order which had been imposed on 30 October 1992.

On 2 June 1993, because he had failed to comply with the community service order imposed on 30 October 1992, the applicant was sentenced to 3 months' imprisonment in respect of the original offence of wilful damage to the taxi vehicle.

On the following day, 3 June 1993, the accused was tried and convicted before the same judge for stealing the alcohol and was sentenced to 6 months' imprisonment, cumulative upon the period of three months' imprisonment imposed on him the previous day.

The applicant, who is 20 years of age, has an extensive criminal history including unlawful use of a motor vehicle, breaking entering and stealing, receiving, assault occasioning bodily harm, wilful damage and minor street offences.
Counsel for the applicant submitted that the sentencing judge should have delayed sentencing for the breach of the community service order on 2 June 1993 until after the trial of the applicant on 3 June 1993 and then sentenced him in respect of both matters. The significance of this submission was related to a further submission that:

"... if the sentencing Judge had dealt with both matters on the 3rd June 1993, ... then a total sentence of 9 months would be manifestly excessive."

It is unnecessary to deal with the submission that sentences in respect of the two offences should have been imposed at the one time. The submission that the total of the penalties imposed is manifestly excessive is correct. That is substantially because the sentence in respect of the stealing offence should have been imprisonment for 1 month, not six months. We would also reduce the other sentence to 2 months' imprisonment, to be served cumulatively, making a total period of imprisonment of 3 months.
The applicant has a very lengthy criminal record for offences of a similar category to those for which he was sentenced. He has not to date been sentenced to imprisonment. A term of imprisonment for three months in the circumstances is in our view sufficient having regard to his age and background.

The application for leave to appeal is allowed. The sentences are set aside and, in lieu thereof, sentences of imprisonment for 2 months and 1 month, to be served cumulatively, are substituted.