R v Owens

[1995] QCA 214

[1995] QCA 214

COURT OF APPEAL
DAVIES JA
de JERSEY J

BYRNE J

CA No 61 of 1995
THE QUEEN
v.

WARREN LESLIE OWENS Applicant

BRISBANE

..DATE 03/04/95

JUDGMENT
de JERSEY J: The applicant is a 31-year-old man who was
sentenced to 18 months imprisonment for receiving. He was
dealt with on a plea of guilty in the District Court at
Southport.

The learned sentencing Judge declared that 176 days previously spent in custody amounted to imprisonment already served under the sentence, so we may effectively be dealing here with the term of the applicant's future parole more than anything else.

The receiving involved a stereo; a microwave oven; 11 compact
discs; a crossbow; three arrows; a jacket; three plates;
two knives; a display rack; and a pair of shoes. The property
had been stolen recently from a house.

The learned Judge took the view that because the applicant received the stolen property soon after the offence of stealing that the offence was somewhat more serious than the normal run of the mill receiving case.

There was a challenge before us to that expression of view but for reasons I expressed to Mr Hamlyn-Harris during the argument I, for my part anyway, do not regard that as an improper inference on the part of the sentencing Judge.

The applicant, in the end, came down to submitting, through his counsel, that bearing in mind that his past criminal history is old and in view of his age, the sentence of

JUDGMENT
18 months imposed on him was manifestly excessive and that a
sentence of 12 months would have been more appropriate.

The criminal history to which I refer involves a conviction for receiving in early 1985 and a conviction for breaking, entering and stealing in late 1985. The offences are therefore old. They are included in the criminal history which includes quite a number of other offences, most of them drug offences, and the explanation for the receiving and the breaking, entering and stealing in the mid 80s is said to have been drug addiction, which he has subsequently controlled.

That aside, those convictions where he is subsequently convicted of another receiving obviously are significant and provide a very relevant context in which the sentencing Judge selects the appropriate penalty. Now, his age is also obviously a relevant point in that he should be a mature man and cannot plead youth as a mitigating circumstance.

We were referred to a number of decisions by Mr Hamlyn-Harris
who appeared for the applicant. I do not think they establish
a range which would not include the 18 months imposed here.
Indeed, I would not regard those sentences to which he
referred us as establishing any particular range. My own view
is that the 18 months was "within range" as applicable to this
offence having regard to its particular features and I would
not interfere. I would therefore refuse the application.
DAVIES JA: I agree.

BYRNE J: I agree.

JUDGMENT
DAVIES JA: The orders are as indicated by Mr Justice de
Jersey.

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JUDGMENT