R v Peu

[1995] QCA 114

[1995] QCA 114

COURT OF APPEAL

FITZGERALD P
BYRNE J
WHITE J

CA No 46 of 1995

THE QUEEN

v.

DAVID PEUApplicant

BRISBANE

..DATE 16/03/95

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal against a sentence imposed in the Magistrates Court in Brisbane on 9 January 1995. 

The applicant pleaded guilty to one count of unlawful possession of a motor vehicle and was sentenced to six months imprisonment with a three month non-parole period.  Restitution of $2,398.95 to pay to the clerk of the Court, Brisbane was ordered within six months, in default of which the applicant was to serve a further six months imprisonment.

The applicant appeals on the ground that the sentence is manifestly excessive in that the order of restitution is excessive.  He submits that the sentence which should have been imposed was six months imprisonment with no restitution ordered.

The applicant is 20 years of age.  Early in October 1994 he obtained the keys to the complainant's vehicle from another person and went to sit in it.  He knew he did not have the complainant's consent.  Subsequently he was joined by some friends and they travelled from Brisbane to Ipswich and to the Gold Coast.

The applicant in his interview with the police indicated that he was not the driver, but had been present for the entire journey and was finally dropped at his home address when he told the others to take the car back to the complainant.  In the course of this escapade the vehicle had undergone damage assessed at $2,398.95. 
The applicant, although young, has an extensive criminal record including offences of housebreaking, shoplifting, stealing, wilful damage, breach of the Bail Act and breach of probation. The current offence was committed four months into a probation order.

It is submitted for the applicant that he cooperated with police and had assisted them by naming his co-offenders, and that this could be taken into account; and further that he was not the driver and that he told the co-offenders to return the vehicle to the owner.

It was also noted that he had spent 10 days in custody in relation to this offence, and although it was claimed that he was willing, it is said, and I accept, that he is unable to pay the restitution.

Two aspects of what occurred troubled me.  Firstly the prosecutor initially asked for only one-third of the restitution be ordered to be paid by the applicant and only changed this requirement to the full restitution after encouragement by the Magistrate. 

Secondly the sentence is equivalent to a sentence of 12 months imprisonment.  The applicant was required to pay the restitution within the period for which he was sentenced to prison.  Perhaps he would be released earlier on parole, but then how is he to earn the money needed to avoid the further imprisonment. 

There is no suggestion that he already had the necessary funds.  And the restitution order is of no practical value to the complainant, but has the practical effect, from the point of view of the applicant, of extending his sentence to
12 months or perhaps worse requiring his return to prison at the end of a period of parole to serve a further period of imprisonment.

I am sympathetic to the complainant and I understand the desirability of restitution in circumstances such as these, and I accept that restitution should be ordered in appropriate circumstances; but it should not, in my opinion, be ordered in circumstances in which the only practical effect is to extend the term for imprisonment beyond that which is otherwise appropriate.

I am satisfied, therefore, that the sentence imposed is manifestly excessive to the extent that if restitution was ordered to be paid in default of further term of imprisonment I would grant the application, allow the appeal and vary the sentence imposed below by deleting the order for restitution.

BYRNE J:  I agree.

WHITE J:  I agree.

THE PRESIDENT:  The order of the Court is application granted, appeal allowed, sentence imposed below varied to delete the order for restitution.

THE PRESIDENT:  It occurs to me - I don't think your papers dealt with it, but wasn't this man in gaol for 10 days for the purpose of this offence and-----

MS McGUINNESS:  Yes, I thought I had mentioned that.  I apologise, Your Honour, I thought-----

THE PRESIDENT:  So don't we need to make a declaration that that's time served under the sentence?

MS McGUINNESS:  Yes, Your Honour.  Although, Your Honour, if you are only varying the order to remove the-----

THE PRESIDENT:  But the Magistrate didn't deal with it, did he?

MS McGUINNESS:  Yes, Your Honour, he did.

THE PRESIDENT:  Well, I can't find it in his order.  No, I don't think he did.  I assumed that he had, but then when I looked at it, well-----

MS McGUINNESS:  I thought he had too, but I-----

THE PRESIDENT:  Well, I assumed when you - I'm not saying this in a critical sense, but I assumed when counsel hadn't referred to it that he had, and then I just suddenly thought I had better check it, and on looking at page 3 of the record, he doesn't seem to have done so.

WHITE J:  The Court needs to know the date when he went into custody in respect of these offences and no others so that those dates can be stated on any number of days declared.

THE PRESIDENT:  That's right, isn't it?  It's not dealt with by the Magistrate

MS McGUINNESS:  I believe what happened was-----

THE PRESIDENT:  No, you don't have to justify.  I'm not - there's no question of blame.  It's just a matter of getting it right.

MS McGUINNESS:  Yes, Your Honour.  That doesn't appear to have been-----

THE PRESIDENT:  We do need to-----

MS McGUINNESS:  -----mentioned.

THE PRESIDENT:  Very well.  Do you know the dates between which he was in custody?

MS McGUINNESS:  No, Your Honour.

THE PRESIDENT:  We can probably do it by subtracting 10 from the date of sentence, can we?  He was sentenced on 9 January.  Shall we deal with it on the basis that he was in custody between the 31st-----

MS McGUINNESS:  Yes, Your Honour, in Gilbert's affidavit she indicated that she told the Court that Peu's sentence for the other offence expired on 30 December and he had thus spent
10 days in custody.

THE PRESIDENT:  And - when?

MS McGUINNESS:  The 30 December.

THE PRESIDENT:  30 December?  Very well.

MS McGUINNESS:  Thank you,  Your Honour.

THE PRESIDENT:  Is that satisfactory, Mrs Clare?

MS CLARE:  Yes, thank you, Your Honour.

THE PRESIDENT:  The Court declares that the dates between which the applicant David Peu was held in pre-sentence custody were between 30 December 1994 and 9 January 1995, and declares that period, namely 10 days, to be imprisonment already served under the sentence, and orders that there be cause to be noted in the records of the Court the fact that the declarations were made and the details, and that the declared time was time taken into account in imposing sentence, and orders that the Commission be advised of the declarations and the details.

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