R v Loughran

[1994] QCA 341

IN THE COURT OF APPEAL  [1994] QCA 341

SUPREME COURT OF QUEENSLAND
  C.A. No. 186 of 1994

Brisbane

[Finney v. Loughran]

BETWEEN:
  S.N. FINNEY

v.

DAVID GERALD LOUGHRAN        (Applicant)

Fitzgerald P.
  McPherson JA.
  Ambrose J.

Judgment delivered 12/08/94

Joint reasons for judgment of the President and Ambrose J, separate dissenting reasons of McPherson JA.

Application for leave to appeal against sentence granted. Appeal allowed to the extent that the convictions are not to be recorded. Sentences imposed below otherwise stand.

CATCHWORDS:CRIMINAL LAW -  Sentence - applicant stood lookout whilst co-accused broke into cars and stole items - applicant aged 20 years with minor criminal history given same sentence as co-accused with serious criminal history - whether manifestly excessive

Counsel:Mr.G. O'sullivan for the applicant

Ms. L. Clare for the respondent

Solicitors:McDonald and Co. for the applicant

Director of Prosecutions for the respondent

Hearing Date:05/08/94

REASONS FOR JUDGMENT - FITZGERALD P. and AMBROSE J.

Judgment delivered   12/08/94

This is an application for leave to appeal against a sentence imposed in the Magistrates Court in Southport on 26 April 1994.  The applicant was convicted on his own plea of four counts of wilful damage and three counts of stealing. He was placed on two years probation and ordered to perform 200 hours of community service and to pay restitution in the sum of $255.65, which he has since paid. Convictions were recorded.  A similar course was followed in respect of one of the applicant's co-offenders, while the other co-offender was treated similarly in respect of the wilful damage offences but, on a subsequent occasion when he was being sentenced for a number of other offences, given two months imprisonment  in respect of the stealing offences.
     The applicant has appealed against the sentence on the ground that it is manifestly excessive in respect of the recording of convictions, the length of time on probation and the number of hours community service ordered to be performed.
     In the early hours of the morning of 25 April 1994, the applicant stood look-out whilst his two co-accused broke into a number of parked cars. One of the other accused broke into the four cars by smashing windows and then, apparently at the instigation of the third accused, stole two car stereos and a tennis racquet from the vehicles.  The three were, soon afterwards, found walking down the highway with the stolen property in a bag. The applicant made admissions to police in the course of being interviewed. The total cost of repairs to the vehicles was $799.95.
     The prosecution did not seek to uphold in full the sentence imposed on the applicant; it was conceded that the applicant should have received a lesser sentence than the co-offender who received an identical sentence.
     Each of the co-offenders had a very much worse criminal history than the applicant, whose only prior offence was possession of a dangerous drug, a few weeks earlier.  On that occasion, he was fined $35.00. It is not clear whether a conviction was recorded, but it is unlikely that that was done if the drug was marijuana in view of the applicant's youth; he is presently 20 years of age.
     The question remains as to how the sentence imposed on the applicant should be altered. It is plainly in the applicant's best interest that convictions not be recorded, and that seems to me the preferable course. He is still young, and hopefully will take advantage of the leniency which is being extended to him. I do not see any unfairness to the applicant's co-accused in this approach, since it is clear that they should have received heavier sentences than the applicant, and in any event, not recording convictions would have been of little, if any, benefit to them in view of their prior criminal histories.
     The applicant also sought a reduction of his period of probation and the number of hours for which he must perform community service. Both periods are substantial, but within the appropriate range. I would not interfere.
     The application should be granted and the appeal allowed only to the extent of an order that the convictions not be recorded. Otherwise, the sentence is to stand.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 12th day of August 1994

The applicant was one of three offenders who broke car windows and stole articles from inside cars parked in the streets of Surfers Paradise.  The sentences imposed on each of them were 2 years probation and 200 hours community service, with the convictions to be recorded in each case, and an order for restitution.
     The appellant has in my opinion a basis for feeling aggrieved at that result because he played a lesser, and less active, part in committing the offences; and, unlike them, he has no relevant criminal convictions since he became an adult.  There is therefore a basis for intervention on appeal.
     The offences were, however, of such a number and kind as to make them serious.  In my view the proper course would be to allow the convictions to stand recorded in the case of the applicant but in his case to reduce the period of community service from 200 hours to 80 hours.
     I would order accordingly.