R v Missingham

GEOFFREY DAVID MISSINGHAM	Applicant
BRISBANE ..DATE 16/07/98

[1998] QCA 292

COURT OF APPEAL

de JERSEY CJ DERRINGTON J

CA No 163 of 1998
THE QUEEN
v.

JUDGMENT against a sentence of six months' imprisonment imposed upon the applicant in respect of a charge of stealing a television set which was provided in an apartment that he was renting and which he tried to use as security for a loan, it is said.

He is 42 years of age and has an appalling record, particularly in relation to matters of dishonesty and drugs. He had shortly before the time of his sentence, that is about a month prior to that time, been placed on three years parole by a Magistrate in respect of other stealing offences, one of which was after the offence to which the present sentence relates, and one of the complaints is that the learned Judge's sentence of six months' imprisonment would interfere with the beneficial effects of that probation. However, His Honour, in addition to sentencing the applicant to prison, also placed him on two years probation in the hope, presumably, of providing that additional assistance after he completes his imprisonment.

The offence itself was not of a high order of theft and must inevitably have been found out in the course of time. The proposition that the applicant was going to redeem the property later in the day when he received part of the wages of his de facto wife might very well have been rejected by His Honour as being an unlikely story having regard to the applicant's prior criminal history. He claims that he had no knowledge at the time that what he was doing would amount to a criminal offence since he did not intend to deprive the owner of the goods of them permanently. With respect, again, his

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maturity and serious criminal history would place that
proposition very highly in doubt.

It is suggested that His Honour took an incorrect attitude on the question of remorse relating to the plea of guilty. The argument is that the applicant had maintained his plea of not guilty up until the morning of the trial upon the basis of his understanding of the law relating to theft and that it was only when his counsel pointed out to him the appropriate provision of the Criminal Code, that provided that even on his own intention as alleged he would still have been guilty of the theft, that he realised that he was indeed in breach of the criminal law and changed his plea to guilty.

His Honour indicated in his summing-up some doubt about that, but indicated that in any case the late plea was "hardly indicative of any remorse on (his) part". His Honour did not in fact make a finding that the excuse offered was not correct but reasonably justifiably came to the conclusion that in all the circumstances, the fact that the applicant was caught red- handed trying to pawn the television set, the plea still hardly indicated any substantial indication of remorse.

Whilst having regard to the relative mildness of the offence, a sentence of six months' imprisonment might not have been imposed by this Court if the matter had been before it afresh, it is certainly not possible to say that the sentence that was imposed was manifestly excessive.

JUDGMENT

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Accordingly, the application for leave should be refused.

THE CHIEF JUSTICE: I agree. The application is refused.

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JUDGMENT

The matter before the Queensland Court of Appeal was an application by Geoffrey David Missingham to appeal against a sentence of six months' imprisonment imposed by the trial judge. Missingham had been found guilty of stealing a television set from an apartment he was renting, which he attempted to use as security for a loan. Missingham, who is 42 years old, has a significant criminal history involving dishonesty and drug offences. Notably, he had been placed on parole by a magistrate just a month prior to his sentencing for other stealing offences, and one of the arguments in the appeal was that the current sentence would interfere with the beneficial effects of that parole. However, the trial judge imposed a prison sentence while also placing Missingham on two years probation, presumably to provide additional assistance post-imprisonment.

The appeal centred on several legal issues, primarily whether the sentence imposed was manifestly excessive. Missingham's counsel argued that the offence was not of a high order of theft and would likely have been discovered eventually. Additionally, Missingham claimed that he did not realise his actions amounted to a criminal offence, as he did not intend to permanently deprive the owner of the television. The counsel also contended that the plea of guilty was entered late, only after legal advice clarified the applicable criminal law, and thus did not reflect true remorse. The trial judge, however, found that the late plea did not indicate substantial remorse.

The Court of Appeal, comprising de Jersey CJ and Derrington J, found that while the offence was relatively minor, the sentence was not manifestly excessive. The court considered Missingham's extensive criminal history and the fact that he was caught in the act of attempting to pawn the stolen television. The appeal judges were of the opinion that the trial judge's decision to sentence Missingham to six months imprisonment, coupled with two years probation, was reasonable. They concluded that the sentence was not manifestly excessive and that the appeal should be dismissed.

Accordingly, the Court of Appeal refused the application for leave to appeal against the sentence.

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