R v Moss

[1992] QCA 287

COURT OF APPEAL [1992] QCA 287

PINCUS JA
McPHERSON JA

THOMAS J

CA No 204 of 1992

THE QUEEN

v.

JASON LEE MOSS	Applicant
BRISBANE ..DATE 14/08/92
JUDGMENT

140892 been born on 10 May 1976. He was found guilty of having broken and entered with intent.

THOMAS J: This is an application for leave to appeal against a sentence imposed in the

He had entered a private dwelling through the main bedroom window. Cupboards and drawers had been searched, and a quantity of cash and cassettes worth $490.46 were stolen. The Magistrate ordered that a conviction be recorded and that he be committed to the care and control of the Director of the Department Family Services for a period of 12 months; restitution of $490.46 was ordered.

This was not the first occasion in which the applicant had been before the Courts. On 5 March 1991 he had been brought before the Children’s Court in Cairns on a charge of unlawful use of a motor vehicle, and on a further charge of wilful damage. He was admonished and discharged. Two months later, on 7 May 1991, he was again before that Court on a charge of stealing and was again admonished and discharged. On 27 May 1992 he was dealt with for a considerable number of offences, many of which appear to be relatively serious. Three of these were stealing charges, committed between 20 and 23 March 1992, four of them were break and entering dwelling house charges, committed apparently between 1 March 1992 and 28 April 1992. There were also 10 charges of unlawful use of a motor vehicle. On that occasion he was given into the care and control of the Director for 6 months, including a period of strict custody of 6 weeks. There was also restitution of $710 ordered.

The main point made on the present application is that a conviction ought not to have been ordered to be recorded. The Stipendiary Magistrate imposed the sentence under section 62(g) of the Children’s Services Act. Counsel submitted that an order under section 62(1)(k)(iii) would have been appropriate. Indeed his submission needs to be that to do otherwise was to impose a sentence that was manifestly excessive.

The offence in question, it is true, was committed during the period when the spate of offences, which came before the Court on 27 May 1992, had been committed. Now, it may well be that had this additional offence been placed before the Magistrate, a similar order, without any conviction being recorded, may have been imposed. On the other hand, it is possible that the inclusion of an additional offence may have been the last straw, and may have induced that Magistrate to act otherwise. These considerations are, I think, by the way.

If the Magistrate on the occasion of 27 May 1992 erred on the side of leniency, it would hardly be a ground for saying that the sentence under review at present is manifestly excessive because it does not do likewise. A somewhat more objective approach seems to be necessary. Looking at the entire record of this young offender, he quite plainly had not taken advantage of the earlier lenient treatment from the Courts.

There is a question of community interest involved in the question whether a conviction should or should not be recorded. There is the question of the right of insurance companies, employers and others to be entitled to disclosure or not. There is also the wider community aspect inasmuch as section 139 of the Children’s Services Act means that orders under 62(1)(k)(iii) may not be mentioned in antecedents.

In this instance I find it impossible to say that there was error in the order to the extent that it directed that a conviction be recorded. Being of that view, I do not regard the sentence as being manifestly excessive, by reason of that component, or looked at as a whole. I would accordingly refuse the application.

McPHERSON JA: I agree. It is I think worth while, although my brother has mentioned the offences, to record them again in these reasons. The applicant committed 11 offences of unlawful use of a motor vehicle between 31 December 1991 and 23 March 1992. In addition, 4 offences of breaking and entering dwelling houses, 3 of them committed between 1 and 23 March and a fourth one committed on 28 April 1992. Then there were 4 stealing offences between 20 and 23 March 1992, and one wilful damage offence on 28 April 1992

In respect of those matters there were 3 court appearances between 5 March and 27 March 1991. The offence with which we are concerned here was additional to those I have mentioned. It was an offence of breaking and entering a dwelling house with intent, committed on 22 March 1992. The appearance in respect of it was 17 June 1992, and it is evident from the circumstances of it that the offence was committed after the first occasion of the applicant’s being before the Court, and being admonished and discharged as well, it seems, as the second one. Those two appearances were on 5 March 1991 and 7 May 1991.

In all the circumstances, one might well think that the patience of society has sufficiently been exhausted by the persistent criminal career of this young man, and that recording a single conviction after commission of all these offences is not a particularly heavy penalty, or an unrealistic one, to impose in the case of this person. I agree with the order proposed by my brother.

PINCUS JA: I agree.

McPHERSON JA: The order of the Court is that the application for leave to appeal is refused.

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