R v Lincoln

[2000] QCA 301

[2000] QCA 301

COURT OF APPEAL

PINCUS JA
THOMAS JA
WILLIAMS J

[R v LINCOLN]

CA No 82 of 2000

THE QUEEN

v.

TIMOTHY JOHN LINCOLN  Applicant

BRISBANE

..DATE 27/07/2000

JUDGMENT

WILLIAMS J:  In July 1997 the applicant was the subject of a police raid which resulted in property being located which had recently been stolen.  In consequence he was charged with offences of receiving various items of property having an approximate value of $2,500.  He did not come to trial until March 2000; that was primarily because he breached his bail condition on a number of occasions.

When he came before the Court on 9 March 2000 pleas of guilty were entered to the subject offences.  Perhaps fortunately for him the learned sentencing Judge was persuaded, notwithstanding the breaches of bail, to regard that plea as a timely one because there had been some intimation in writing at an earlier point of time that pleas of guilty would be entered.

Between his apprehension in July 1997 and his standing for sentence in March 2000 the applicant committed other serious offences.  They included offences of stealing, unlawful use of a motor vehicle and possession of property suspected of being tainted.

The learned sentencing Judge regarded the commission of those offences as indicating that the applicant was not a suitable candidate for a community-based order because of the likelihood of his re-offending.  In my view the learned sentencing Judge was justified in approaching the sentence on that basis. 

Amongst the property the subject of the receiving charges were some passports.  Apart from the plea of guilty nothing was said by or on behalf of the applicant with respect to his possession of those passports.  In the course of his sentencing remarks the Judge said:

"So far as the passports are concerned one cannot say that they are of great value but I consider one is permitted to observe that passports are likely to be used for the commission of other offences and some of those offences might be very serious."

That statement was the subject of challenge by counsel for the applicant today.  He submitted that the sentencing Judge was not entitled to be satisfied to the requisite degree that the passports were in the possession of the applicant for a purpose related to the commission of some other offence.

In my view the sentencing Judge was entitled to make the observation which he did.  There was no explanation forthcoming from the applicant for his possession of them.  Passports were of no value to the applicant except as items to be used by him for the commission of some offence or to be sold by him to some other criminal for a profit or to be held by him on behalf of another person who intended to use them for an unlawful purpose.  Whichever of those uses was the correct one, each supported the statement made by the sentencing Judge.  

That leaves for consideration the most significant matter raised by counsel for the applicant.  Approximately two years before he stood for sentence the applicant accidentally ingested some caustic soda which occasioned severe oesophagitis, that is narrowing of the passageway through his oesophagus due to scarring and ulceration.  The medical evidence suggests that regularly, probably at about two weekly intervals, he will need to undergo a general anaesthetic to have his oesophagus dilated. 

The applicant had been in custody in March 2000 at the time he stood for sentence, apparently with respect to other matters.  It is clear from material before the Judge, particularly some evidence from Dr McDonald, that he had been taken from the prison to the Princess Alexandra Hospital to have that treatment carried out.  There appears to be no difficulty with his receiving the necessary treatment whilst in custody.

The learned sentencing Judge undoubtedly took that medical condition into consideration.  He specifically noted that the applicant had a medical problem and drew the attention of the prison authorities to that by ordering a copy of Exhibit 10, the medical certificate, to be annexed to the documents going to the prison.

In the circumstances the applicant was sentenced to 18 months imprisonment but an order was made that it be suspended after serving six months.  The operational period was fixed as the period of two years.  Counsel for the applicant conceded that in the circumstances a custodial sentence was called for and that a sentence of 18 months imprisonment was within the range, though on his submission at the upper end thereof.  His submission was that the sentence should either have been totally suspended or suspended after the applicant served no more than four months.

When one considers all of the matters to which I have referred I am of the view that the sentence in fact imposed was justified.  In my view ordering that it be suspended after serving six months adequately reflected the mitigating circumstances of the applicant's medical condition.  In my view the sentence is not manifestly excessive and the application should be refused.

PINCUS JA:  I agree.

THOMAS JA:  I agree.

PINCUS JA:  The applicant is refused.

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