R v McKlaren

[1992] QCA 34

COURT OF APPEAL [1992] QCA 034

McPHERSON JA
PINCUS JA

THOMAS J.

CA NO. 294 OF 1991

THE QUEEN

v.

JASON WILLIAM McKLAREN	Applicant
BRISBANE
... DATE 24/2/92
JUDGMENT

PINCUS JA: This is an application for leave to appeal against a sentence in respect of the conviction of the applicant on 20 September 1991.

The offence with which the applicant was charged was one of unlawfully using a motor vehicle without the consent of the owner and the charge goes on to say, "the person in lawful possession thereof and at the time and place aforesaid you wilfully destroyed the said motor vehicle".

The two persons who came before the Court were the applicant, McKlaren and Alexander Ross Christiansen. In the result, the learned Judge sentenced the applicant to two and a half years imprisonment and made a probation order in favour of Christiansen. The point, and the only point, taken by counsel for the applicant is that, according to his submission, there is such a discrepancy between the treatment of the two offenders as to require the intervention of this Court.

It is perhaps unnecessary to set the detailed circumstances of the offence out, but it should be mentioned that, according to the record of interview of the applicant which is before the Court, and extracts from the record of interview of Christiansen which are also before the Court, a number of young men stole the vehicle and drove it about for a time and then destroyed it. First, it was damaged with implements which were apparently taken from the applicant's premises. Secondly, it was set on fire.

There is a lack of harmony between the version of events given in the record of interview of the applicant and the facts supplied by Christiansen. The discrepancy, in essence, is that according to Christiansen's account which is set out at p.5 of the record, he had very little to do with the whole series of events. According to the version given by the applicant, Christiansen was quite substantially involved but, in particular, took part in setting fire to the vehicle. It appears to me that in this position the primary judge was not entitled to take into account against Christiansen the accusations made against him by the applicant; indeed, that seems clear. The case may be of a familiar kind, one in which the versions of the offenders do not coincide and the Judge has to sentence each of the offenders on a different account of the facts. 2

In relation to the applicant it seems likely (it is unfortunate that one has to speculate about this) that the Judge took into account the fact that, while on bail in relation to this offence, he was convicted of a series of offences in June 1991. It is desirable to mention what they were: unlawful use of a motor vehicle with intent to facilitate the commission of an indictable offence; stealing fuel; wilful damage to property; possession of a concealed unlicensed firearm; found armed in the night-time with intent to break into a building and commit an indictable offence and driving dangerously.

His previous criminal history had been minor, namely behaving in a disorderly manner and it seems likely that the Judge must have acted as he did on the basis that the events of May 1991 showed the applicant to be unsuitable for anything other than a custodial sentence. It has to be said, again, that it is undesirable that the Court should have to speculate or guess about these matters. There was on the face of it a substantial discrepancy between the treatment of the two offenders and it is unfortunate that His Honour chose not to give out an explanation from the record, in the event of any complaint being made about it. 3

Mr McMillan does not say, and it seems to me he is correct in this, that the sentence which was imposed on the applicant, namely two years and six months' imprisonment, was in itself able to be challenged. The circumstance of aggravation which was charged, namely wilfully destroying the motor vehicle seems to make the offence one which would warrant such treatment and although some might think the penalty to be rather at the heavy end of the range, it was a bad case.

The real point, I think, is whether or not anything can be said to justify Christiansen getting no custodial sentence at all, the appellant having been given such a sentence. If one looks at the version which Christiansen gave, which was not challenged by the Crown, his minor involvement in the offence relating to the car, his youth and the fact that he had no previous convictions at all, it cannot be said that a probation order was totally inappropriate. The circumstances then, which as it seems to me to justify the discrepancy, are firstly that the Judge was entitled to take the view that the applicant was a leading participant in the offence, whereas Christiansen on his version had very little to do with it. Secondly, that the offences to which the applicant pleaded guilty on 14 June 1991 showed or suggested that a probation order would not be suitable treatment for him and I think thirdly, that the prisoner Christiansen had no convictions at all. 4

In these circumstances it appears to me that what the Judge did was within the range of a proper exercise of his sentencing discretion and I am of opinion that the application for leave to appeal should be refused.

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