R v McMillan

[1992] QCA 207

COURT OF APPEAL  [1992] QCA 207

DAVIES JA
MCPHERSON JA
PINCUS JA

CA No 67 of 1992

THE QUEEN

v.

CHRISTOPHER JOHN McMILLAN

BRISBANE

.. DATE 12/6/92

JUDGMENT

120692

JUDGMENT
McPHERSON JA:   The applicant for leave to appeal against sentence pleaded guilty in the Magistrates Court at Southport to one charge of unlawful use of a motor vehicle. In respect of it he was sentenced to imprisonment for six months.  The vehicle was a Nissan four‑wheel drive which belonged to Trevette Classic Pty Ltd.

It was taken from outside a hospital in Parramatta in New South Wales in early December of 1991, and was seized by police in the possession of the applicant on the Gold Coast early in February 1992.   The offence was attended by a circumstance of aggravation in that the applicant had altered the engine and chassis number, thereby demonstrating an intent to deprive the owner of the vehicle permanently of its property.

The applicant is a 36‑year‑old man and a first offender.  At the time in question he is said to have been suffering from a
state of depression brought about by financial difficulties which he had undergone in recent times.  He had at the time a de facto wife and a child, and there was then another child on the way.  He was receiving some form of social welfare payment at the time because of his depressed condition.

The vehicle was said to have been given to him by a friend when his own means of transport ceased to be available.  The sentence of six months is within the range of penalties imposed for offences of this kind.  I refer in particular to the case of R v. Stafford in 1986 (CA No 200 of 1986) where the sentence imposed was of hard labour for three months, together with an order for compensation of $5,000, in default imprisonment with hard labour for a further three months.  There is really, so far as I can see, no feature distinguishing that case from this.

There is a reference in the reasons in that case to a monetary detriment, which may suggest that damage had been caused to the vehicle, but it was to some extent catered for by the order for compensation that was made in that case.  The applicant in R v. Stafford was 41 years of age; he too had no previous convictions; and had suffered seriously in consequence of the offence in question, or the penalty imposed in respect of it, by virtue of his having lost a motor vehicle dealer's licence which he had previously held.

When these matters are considered I do not think this case is one in which one could say that the penalty was either excessive or that it was one in respect of which the personal circumstances of the applicant demanded that some other form of penalty should be imposed.  The offence is one that is made serious by reason of the circumstance of aggravation to which I have referred.

In all these circumstances I would refuse the application for leave to appeal against sentence.

PINCUS JA: I agree.

DAVIES JA: I agree.  The order of the Court is appeal against conviction dismissed, application for leave to appeal against sentence refused.  I order that a warrant be issued for his arrest.

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