R v Lee

[2004] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:	R v Lee [2004] QCA 197
PARTIES:	R v LEE, Stephen Bruce (applicant)
FILE NO/S:	CA No 69 of 2004 DC No 45 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence
ORIGINATING  COURT:	District Court at Maryborough
DELIVERED EX	8 June 2004
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2004
JUDGES:	de Jersey CJ, Williams and Jerrard JJA agreeing Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where the appellant was convicted of attempting to wilfully and unlawfully damage a motor vehicle – where the appellant was sentenced to three months imprisonment wholly suspended for an operational period of 12 months – whether the learned sentencing Judge erred in considering the appellant’s prior criminal history – whether the sentence was manifestly excessive
Reid v Edwards CA No 288 of 1990, 28 March 1991, cited
COUNSEL:	B G Devereaux for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant was acquitted by a jury of a charge of wilfully and unlawfully damaging a motor vehicle but he was convicted of attempting to do so and he was sentenced to three months' imprisonment wholly suspended for an operational period of 12 months.

The offence, committed at Hervey Bay on the 18th of November 2003, involved his throwing a screwdriver at an unoccupied car while he was driving by, intending to damage the car but not achieving that object.

It was a brazen offence in the sense that it was committed in the daytime. The acquittal is explained by the jury not having been satisfied beyond reasonable doubt that a scratch on the vehicle was caused by the applicant.

The learned sentencing Judge considered that imprisonment was warranted because of the applicant's prior criminal history. At the time of the offence he was 44 years old. He had a substantial prior criminal history covering three States and the Commonwealth.

Significantly for present purposes, on the 1st of May 2001 he was convicted in Queensland of unlawful use and possession of a motor vehicle and wilful destruction of, damaging, or

interference with its mechanism.
He was then imprisoned for 12 months, wholly suspended for two
years, and that period of two years expired on the 1st of May
2003. On the 9th of November 2001, he had committed a common
assault, for which on the 19th of April 2002 he was fined
$300. That led, on the 8th of August 2002, to extension of
the operational period which had been imposed on the 1st of
May 2001 until the 8th of August 2003.

It may therefore be seen that the applicant committed the instant offence three months after the expiration of that operational period. In those circumstances, it was, in my view, open to the learned Judge to impose a short term of imprisonment while wholly suspending it, notwithstanding the less than serious character of the instant offence.

At the time of sentencing, the Crown submitted that the applicant should be imprisoned for six months, suspended for 18 months to two years, and counsel for the applicant conceded that a term of imprisonment was within range, although submitting that it should be wholly suspended.

Mr Devereaux' submission for the applicant was that given the nature of the offence, nothing more than a fine or good behaviour bond should have been imposed. He referred to Reid v. Edwards CA No 288 of 1990, 28 March 1991, where a one month term for more serious offending in relation to property was upheld, but that offender had not accumulated a past criminal history of this significance, and a direct translation of that approach to this case is complicated by the legislative requirement for there to be "exceptional circumstances" warranting custodial detention in that case.

In my view, the approach taken by the learned Judge was open and not vulnerable on appeal while, of course, had the applicant's prior criminal history not been a factor, imprisonment would have been out of range, albeit wholly suspended for this, as I have said, less than serious offence.

It is the applicant's prior criminal history which to my mind
more than amply warranted the course taken by the learned
Judge. I would refuse the application.

WILLIAMS JA: In this case, there were no mitigating factors such as remorse or plea of guilty. As is demonstrated by the reasons of the Chief Justice, the sentence imposed was within range, particularly given the applicant's criminal history. I agree the application should be refused.

JERRARD JA: I agree.

THE CHIEF JUSTICE: The application is refused.

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