R v Missingham

[1998] QCA 292

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

160798 D.1 T1/MKB M/T COA159/98

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

160798 D.1 T1/MKB M/T COA159/98

Accordingly, the application for leave should be refused.

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

-----

JUDGMENT