R v McGeady & Pitt

[1993] QCA 489

IN THE COURT OF APPEAL  [1993] QCA 489
SUPREME COURT OF QUEENSLAND

C.A. No. 259 of 1993
  C.A. No. 255 of 1993

Brisbane

[R. v. McGeady & Pitt]

BETWEEN:

T H E   Q U E E N

v.

ROBERTA ANNE McGEADY and
                 WAYNE LEONARD THOMAS PITT
  (Applicants) 

The President
  Justice White
  Mr Justice Cullinane

Judgment delivered 06/12/93

Reasons for Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE BY PITT REFUSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE BY McGEADY GRANTED AND THE APPEAL ALLOWED TO THE EXTENT THAT THE RECORDING OF A CONVICTION IS SET ASIDE.  THE SENTENCE IMPOSED ON McGEADY IS OTHERWISE TO STAND.

CATCHWORDS:   CRIMINAL LAW - Sentence - breaking and entering with intent and stealing - 29 year old, extensive criminal history including imprisonment, professionalism in committing offences - guilty plea, co-operation with police and some property recovered - 3 and 2 years' imprisonment respectively, no recommendation as to parole.

CRIMINAL LAW - Sentence - receiving - 22 year old, no previous offences of dishonesty - guilty plea, co-operation with police, disability, loss of custody of children, good work history - unable to obtain consent to probation or community service order - sentence of imprisonment for 18 months suspended for 3 years but conviction not recorded.

Counsel:J D Farmer for the applicant McGeady

P Alcorn for the applicant Pitt

L J Clare for the Crown

Solicitors:   Legal Aid Office for both applicants

Director of Prosecutions for the Crown

Hearing date: 9 September 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND
  C.A. No. 259 of 1993
  C.A. No. 255 of 1993

Brisbane

Before    The President
         Justice White
         Mr Justice Cullinane

[R. v. McGeady & Pitt]

BETWEEN:

T H E   Q U E E N

v.

ROBERTA ANNE McGEADY and
                 WAYNE LEONARD THOMAS PITT
  (Applicants) 

REASONS FOR JUDGMENT - THE COURT

Judgment delivered  6/12/93

These are applications for leave to appeal against sentences imposed in the District Court at Brisbane on 14 July 1993.  The applicant Pitt pleaded guilty to one charge of breaking and entering with intent and one charge of stealing for which he was sentenced to imprisonment for three years and two years respectively.  The sentences are to be served concurrently.  The applicant McGeady pleaded guilty to one charge of receiving and was sentenced to imprisonment for eighteen months, which was suspended for three years conditional upon her not re-offending within that period.
     The applicants shared a house.  Perhaps without McGeady's knowledge, Pitt broke into a neighbour's house while the occupants were absent. He took gloves and a screwdriver and broke open a sliding door and cut a flyscreen door, causing damage in the sum of $95.00.  He then systematically ransacked the house and stole a considerable amount of property which he stacked beside the fence until he had completed removing property from the complainant's house.
     Pitt then called McGeady and proceeded to hand property across the fence to her.  McGeady knew that the property had been taken from the neighbour's house.  The property was then stored in the residence shared by Pitt and McGeady.
     Later, on the same day, a taxi was called for the purpose of removing the property from the applicants' premises.  While the vehicle was being loaded, the complainant saw his property which was visible in the taxi.  When challenged, Pitt admitted that he had stolen the property with McGeady's help.  The taxi driver called the police and the applicants were apprehended and interviewed.  However, an unspecified amount of property was not recovered.
     At the time of the offences on 17 November 1992, Pitt was 29 years of age and had an extensive criminal history including previous offences of dishonesty extending back to the time when he was 17.  He had previously been imprisoned on a number of a occasions.  It was said that he was in a depressive and anxious state at the time of the commission of the offences and had problems relating to a dispute with his de facto wife concerning access to his daughter. A psychiatric report tendered to the sentencing judge described the offences as a "sudden impulsive act" with "illogical and irrational aspects".  In the psychiatrist's view, Pitt had made a good effort to reconstruct his life despite the incident; he had not committed an offence since he had been released from jail in May 1990, a period of about two and half years. However, counsel for the prosecution correctly pointed out that the offence was committed over some time and had elements of professionalism.
     Counsel for Pitt, in contending that the sentences imposed on Pitt were manifestly excessive, emphasised Pitt's co-operation with police and plea of guilty and the recovery of the property in addition to Pitt's personal circumstances.   It was submitted that there should have been recommendation for early parole.
     We disagree. There  is no obvious reason why a recommendation for early parole was appropriate and nothing manifestly excessive in Pitt's sentence.
     McGeady, who was 22 years of age when the offences were committed, had no previous offences of dishonesty and only a minor criminal history of no present relevance.  Reliance was placed upon her co-operation with police and plea of guilty, her unfortunate background, including the loss of sight in her right eye in a childhood accident and the loss of custody of her two children to their father, her good work history and her present employment.  Further, it was submitted that the offence of receiving by her was "technical" in nature and that McGeady had not instigated or been party to Pitt's offence but had accepted the property into the applicants' residence only when it appeared that she had no alternative.  It was argued before this Court that the sentencing judge should have considered and chosen one of the other, more suitable options.   In particular, it was contended that McGeady should have received probation and/or community service without a conviction being recorded.  However, her consent to probation and community service was not provided.  In the circumstances, while she can be given the benefit of her youth and her difficult personal circumstances  by not recording a conviction, little more can be done.  That is the course which we would follow.
     The application by Pitt is refused.  The application by McGeady is granted and the appeal allowed to the extent that the recording of a conviction is set aside.  The sentence imposed on McGeady is otherwise to stand.