R v Naum

[1992] QCA 407

COURT OF APPEAL  [1992] QCA 407

PINCUS JA
McPHERSON JA
WHITE J

CA No 231 of 1992

THE QUEEN

v.

GEORGE NAUM  Applicant

BRISBANE

..DATE 20/10/92

JUDGMENT

201092
PINCUS JA: This is an application for leave to appeal against sentence by Mr George Naum. He was convicted on 22 July 1992 in the District Court at Warwick of offences of unlawfully using a motor vehicle, stealing, and obtaining property, namely petrol, with intent thereby to defraud. The learned trial Judge sentenced the applicant to 5 months imprisonment. Apparently that was calculated on the basis that he had spent 3 and a half months awaiting trial, and Her Honour doubled that, having regard to the parole system, and added 5 months to make, what might be described as an effective sentence of 12 months.

Mr Alcorn, who has appeared for the applicant today, has submitted that the sentence was excessive, and suggested that the proper course for Her Honour to have taken would have been to release Mr Naum, on the assumption that he had been sufficiently punished by his 3 and a half months awaiting trial. Her Honour apparently thought that was not so. The circumstances of the offence, in so far as they relate to the applicant in particular, do not very plainly appear. He did not give evidence at his trial. He made 2 statements to the police which, as Mr Alcorn
has submitted, vary somewhat in content, and it is not clear to what extent one can rely upon either.

In essence, what happened was that a Ford Cortina motor car was stolen in Warwick. It was taken away and burnt. The applicant was, in fact, charged with arson but acquitted, and that must therefore be ignored. It had contained various items, a Pioneer radio, a cassette recorder, an air compressor, and a set of jumper leads. Later that evening the applicant drove the vehicle to a garage at Goondiwindi, and he told the proprietor

he had lost his wallet and needed money. He offered to sell the air compressor in exchange for which the proprietor gave him $15 worth of fuel and some Coca Cola.

The compressor in fact came from the Cortina which had been burnt. Subsequently the applicant was located driving in New South Wales, at Moree, and other items from the burnt out vehicle were found under the front passenger seat, and the jumper leads were also found. Now Mr Alcorn says that the applicant was but a minor participant in the whole affair, that he had very little to do with it. The sole source, it appears, of this contention is what is said at pages 126 and 127 of the record by counsel when Mr Naum was sentenced.

Counsel then said that a man called Pluim, who was involved in the offences, was known to the applicant only shortly before the offences. The applicant was unaware of his ‑ that is Pluim's ‑ criminal activities, and he regarded it as a tragedy that the events occurred. Counsel said, "It appears that he has been considered to be a party, at least, to the whole affair." And he went on to say that in the circumstances he should not receive any further punishment, and there would be very little chance of re‑offending. I do not, for myself, find any very solid ground in those submissions, or in anything else to which we have been referred for assuming that the applicant had very little part in the matter.

His criminal history is fairly bad in that he has a number of offences relating to dishonesty, and it is perhaps worthwhile mentioning some of the more recent of them. He is presently 38 years of age, and if one goes back say to 1973 one finds offences of larceny of a motor car on 3 occasions in that year; in the same year, house‑breaking, stealing and receiving; 1974 larceny of a motor car it appears twice; 1977, theft of a motor car; 1979 burglary; 1980 attempted theft; and there are a number of lesser offences.

The principal point, and indeed it seems to me with respect the only point of substance which is taken on behalf of the applicant, is that he has had no convictions for some considerable time, indeed for a period of about 10 years. It appears from the facts placed before the sentencing Judge that he suffered serious injuries in 1986, and that may to some extent have contributed to his apparent good behaviour in recent years. On the other hand, it was said, on his behalf, that he had custody of his son when he and his wife separated in 1978, and it is also said that his responsibilities for the son contributed to his good behaviour, and that, it seems to me, should be accepted.

Taking into account the fairly long period during which the applicant has had no convictions, it seems to me, nevertheless, that a sentence equivalent to 12 months imprisonment for a person with such a record, is within the range of a reasonable exercise of discretion. That is, my view is that having regard to the fact that the offence was of its kind a reasonably serious one, and there was not a mere casual joy ride or anything of the kind, but the offence involved subsequent events which I have referred to, and the misrepresentation made to obtain money by selling stolen property, the sentence of 5 months imprisonment has not been shown to be excessive, and I would be inclined to dismiss the application for leave to appeal against it.

McPHERSON JA: I agree.

WHITE J: I agree.

PINCUS JA: The order of the Court will be: application for leave to appeal dismissed.

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