R v Plant

[1992] QCA 131

COURT OF APPEAL	[1992] QCA 131
FITZGERALD P McPHERSON JA MACKENZIE J
CA No 25 of 1992
THE QUEEN v. MICHAEL ANDREW PLANT
BRISBANE
... DATE 28/4/92
JUDGMENT

JUDGMENT

McPHERSON JA: Michael Andrew Plant came before a Judge of the District Court on 19 April 1991 charged with one count of breaking and entering with intent and one count of unlawful use of a motor vehicle. The vehicle in question was his employer's vehicle. The applicant, Plant, broke into a shed belonging to his employer in order to take the vehicle. He used it to its detriment and the circumstances showed that generally, a degree of planning was involved in the commission of the offence.

The District Court Judge before whom he came imposed a sentence comprising three years' probation with a condition that the applicant perform 180 hours of community service.

Notwithstanding the opportunity thereby afforded him, the applicant proceeded, after receiving probation and within a short time of that sentence, to commit further offences.

Between 8 and 13 June, he received a quantity of stolen jewellery. On 13 June he was involved in assaulting a person and causing him bodily harm. He was convicted of those offences in the Magistrates Court on 5 August 1991. The Court also dealt with him at the same time for being in possession of a dangerous drug and a smoking implement.

In addition to those offences committed within a month or two of his receiving probation, the applicant also on 25 July 1991 interfered with the door locking mechanism of a vehicle parked at Westfield Shopping Centre. He was evidently discovered in this act and was convicted and sentenced to a fine of $250 on 14 October 1991. There was in addition to these matters an obscene language offence committed, it seems, on 10 August 1991, in respect of which he was convicted on 16 August of that year.

In consequence of these breaches of the conditions of his probation, he came again before the same District Court Judge for sentencing on the original offence. On the occasion of that hearing, His Honour was provided with a report by Sherry Tusler, the community correctional officer, who had responsibility for the supervision of the applicant.

The report is dated 16 October 1991. It records that during the period of the probation order the applicant had reported irregularly and displayed little interest in correcting his offending behaviour. His community service performance was also unsatisfactory. He had performed 40 hours of community service but had thereafter failed to attend the project despite numerous reminders. The report goes on to say "This behaviour is a repetition of Plant's response to previous fine option orders granted in November 1989 in respect of driving offences committed at Maroochydore." Sherry Tusler noted in the report to which I have referred that the applicant "would not be considered suitable for further community service."

The result of the proceedings before His Honour on the hearing for resentencing, in consequence of the breach of probation, was that the applicant was sentenced on this occasion to 12 months' imprisonment in respect of the original offence. In imposing that sentence His Honour remarked that he had it in mind to sentence the applicant to a term of imprisonment of 18 months but, after hearing what counsel had said, he decided to impose the lesser term to which I have referred.

The applicant's youth is a matter in his favour. He was at the date on which he came before the District Court Judge for resentencing in January 1992, aged about 19 or 19.5 years. At that time, he had succeeded in securing employment after what, according to other material, appears to have been a lengthy search for it. He has, from that employer, a reference describing him as reliable and conscientious.

A report from Mrs Sue Parrell dated 16 January 1992, which was Exhibit 6 before the sentencing Judge, commends the applicant for obtaining that employment with Mrs Parrell's assistance and for, as she says, "isolating himself from the peer group which had exercised a bad influence over him".

On the application before us, it was urged that having regard in particular to the approval apparent in Exhibit 6 of the applicant's conduct; a sentence of 12 months' imprisonment was too severe. It was submitted that the applicant should either have been given a further opportunity to prove himself by probation or that a lesser term of imprisonment should have been imposed with a period of probation to follow.

It may be that if I were dealing with the matter anew and without knowledge of the circumstances that the applicant's employment has been broken and that he has now, for the first time, been sent to gaol, I might have been disposed to take an extremely merciful view and offer him a further opportunity to continue what was said to be the process of rehabilitation that was apparent at least in the last few months before he was resentenced.

However, when one bears in mind the fact that that has not occurred and that the applicant has now passed through the barrier into prison for the first time, the matter becomes one in which I think we are bound to consider the application in light of the sentence that was imposed, or rather of the duration of it. I do not think that having regard to the considerable number of offences that were accumulated during the period when this young man was on probation and only shortly after he had been placed upon it, and in the light of the serious circumstances in which the original offence was commited, that it can be said that a period of 12 months' imprisonment is outside the range of a proper sentencing discretion in a case like this.

In these circumstances, although not without some hesitation, I think the application for leave to appeal against sentence should be dismissed.

THE PRESIDENT: I agree that the sentence was within the range of His Honour's discretion and that the application should be dismissed.

MACKENZIE J: I agree.

THE PRESIDENT: The order of the Court is applicaiton dismissed.

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