R v O'Rourke

[1998] QCA 449

COURT OF APPEAL

[1998] QCA 449

McPHERSON JA
WILLIAMS J
MUIR J

CA NO 315 OF 1998

THE QUEEN

v.

BRODWYN MARGRET O'ROURKE                  Applicant/Appellant

BRISBANE

..DATE 28/10/98

JUDGMENT

WILLIAMS J:  On 1 September 1998 the applicant appeared in the District Court at Maryborough and was sentenced to 12 months imprisonment.  She had initially on 1 July 1997 pleaded guilty to a breaking and entering offence and on that occasion had been released on probation for 12 months.

It is admitted that she breached that probation order in that she failed to report as and when required to the appropriate officer and also failed to notify that officer of her change of address.  In consequence on 1 September 1998 a District Court Judge opted to sentence her again for the initial break and enter offence and it was in those circumstances that the order that she be imprisoned for 12 months was made.

The original offence was a reasonably serious one.  On the evening of 30 December 1996 she attended a party at a residence near Ipswich.  There was a male person at that party whose name so far as is revealed by the record was "Spud."  Spud has not subsequently been arrested or charged in connection with the offences.  But it was accepted by the Crown and by the sentencing Judge that Spud was the prime mover in connection with the offence and that he was the one who actually entered the residence next door to where the party was being held and removed the property.

The material before the Court would suggest that the applicant went on to the verandah of the neighbouring house and there received from Spud bags of goods which she carried back to the house at which the party was being held.

Subsequently when her residence was searched, police found a significant quantity of the property which had been taken from the burgled house. 

At the initial sentence there was some difference of view as to the value of the property taken.  The figure of $5745.65 was then mentioned.  However on 1 September the Crown Prosecutor then appearing stated to the Court that the amount of property taken was $2893.  In the circumstances it is appropriate to regard that latter figure as the value of the property that was involved in the offence committed by the applicant.  As I said, quite a deal of property was discovered at her residence and that of course has been returned.

The applicant has no criminal history.  She was born on 30 December 1960 and was thus about 36 years of age when the offences were committed.  She had two teenage children.  It would appear that after being placed on probation, she experienced difficulty in controlling those two children.  It was partly because of problems associated with those children that she made the decision to move from the Ipswich area to Tin Can Bay.  As I have already noted, she did not notify her probation officer of that move.  Once she changed her place of residence she ceased having any effective contact with her probation officer.

The report from the probation officer which was before the sentencing Judge indicated that the applicant had ignored correspondence sent to her and demonstrated a lack of compliance and that she was an unsuitable candidate for community supervision.  It was in the light of that that the parole officer made a recommendation that she be dealt with for the original offence.  That recommendation was made in December 1997 but she did not come before the Court until September 1998.

In the course of his original sentencing remarks when placing her on probation for a period of one year, the sentencing Judge described the offence as an extraordinarily stupid thing for her to do, which behaviour was not typical of her past.  It was the same Judge who dealt with her consequent upon the breach of that probation order.

On that occasion he remarked that the offence involved the ransacking of a house whilst the occupants were away on holidays.  He said that he had initially given her a remarkable indulgence and that she had thumbed her nose at it.  It was in those circumstances that he imposed the sentence of 12 months imprisonment.  The applicant has already served 67 days under that sentence, which includes 10 days served between 23 August and 1 September.

Counsel for the applicant in this Court primarily relies on the fact that the applicant has no other convictions, that she has lived a law abiding life apart from the commission of the original offence.  Further he emphasises that her role in the offence was not a leading one; she pleaded guilty as a party to the offence because of the assistance which she had given to the male person Spud and because of the fact that she had taken or received some of the stolen property.

Further it is not without significance that the breach of the probation order was not the commission of a further criminal offence but rather the failure to comply with reporting conditions.  She had also for some time been subject to the requirements of the probation order.

In all of the circumstances I am of the view that a sentence of 12 months imprisonment is manifestly excessive and ought to be reviewed by this Court.  It is clear, in my view, that the applicant is not a suitable candidate for further probation, but it is equally clear that she will probably benefit from the fact of having a good behaviour condition hanging over her head for some time.

In the circumstances it seems to me that the appropriate sentence for this Court to make is to leave the order of 12 months imprisonment stand but to order that it be immediately suspended under section 144 of the Penalties and Sentences Act and that an operational period of two years be fixed.

In the circumstances, I would grant the application for leave to appeal, allow the appeal, order that the sentence of 12 months imprisonment be immediately suspended under section 144 of the Penalties and Sentences Act and fix the operational period as the period of two years.

McPHERSON JA:  I agree.

MUIR J:  I agree.

McPHERSON JA:  The order will be as it has been expressed by Mr Justice Williams.

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