R v Ryan

[2006] QCA 3

SUPREME COURT OF QUEENSLAND

CITATION:	R v Ryan [2006] QCA 3
PARTIES:	R v RYAN, Shaun Dean (applicant)
FILE NO/S:	CA No 346 of 2005 DC No 173 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED EX TEMPORE ON:	31 January 2006
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2006
JUDGES:	McMurdo P, McPherson JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT –  SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where applicant contravened conditions of a suspended sentence – where applicant has history of breaching suspended sentences and probation – whether order partially activating suspended sentence upon breach manifestly excessive
COUNSEL:	The applicant appeared in person B G Campbell for the respondent
SOLICITORS:	The applicant appeared in person Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA:  On 18 March 2005, the applicant pleaded guilty to a number of offences including armed robbery in company with his co-accused Appo.  That was committed in January 2004.  They menaced a motel receptionist with a torch and took the contents of the till.  He was on bail at the time of the offences.

In the District Court at Southport his Honour Judge Rackemann sentenced the applicant to three-and-a-half years' imprisonment to be suspended after 14 months for an operational period of four years.  No additional periods of custody were imposed for the other offences which included stealing, unlawful use of a motor vehicle and entering premises with intent.

On that occasion, the applicant also pleaded guilty to another indictment charging him with driving while under the influence of alcohol with a concentration of .217 per cent, possessing tainted property and unlicensed driving.  On 6 September 2005, the applicant pleaded guilty in the Magistrates Court at Toowoomba to two offences committed on 24 June 2005 at Surfers Paradise of having driven without a driver's licence and having driven with a blood alcohol concentration of .09 to both of which charges he pleaded guilty.

Convictions for those offences for which probation was imposed had the effect of potentially activating the suspended sentence of three-and-a-half years imposed by Judge Rackemann on 18 March 2005 of which some two or more years then remained unserved.  Following that, on 13 December 2005, the applicant came before Judge Howell in Toowoomba who ordered the applicant to serve three months of the suspended sentence.

This is an application for leave to appeal against that sentencing order.  Presumably, although we've not seen any material from the applicant that directly supports the submission, the complaint now being made is that Judge Howell's order is manifestly excessive on the basis that the applicant should not have been sentenced to prison at all for contravening the conditions of suspension of the sentence imposed on 18 March 2005.

I find this complaint impossible to accept.  In addition to the offences mentioned here, the applicant has a record of other prior convictions including offences of fraud, entering premises with intent and possession of utensils for drug purposes for which he has, in the past, been given suspended sentences or probation which he has soon breached thereafter.

The applicant was born in New South Wales in 1980.  His personal circumstances are not before us in any detail but he appears to have had an unhappy upbringing.  In sentencing, his Honour Judge Howell took account of the fact that the applicant's de facto wife was expecting a child within another five months or so.  His Honour said that bearing in mind the applicant's approaching family responsibilities, he proposed to activate less than the full suspended sentence.  When regard is had to the applicant's history of offending and the opportunities of rehabilitation extended to him in the past in the form of probation and suspended sentences of which he has not taken advantage, it is simply not possible, in my view, to regard the order to serve only a further three months of the original three-and-a-half-year sentence as excessive.

Indeed, the applicant has throughout been dealt with, as he was on this occasion, in ways that can only be described as relatively lenient. 

I would therefore dismiss the application for leave to appeal against sentence.

THE PRESIDENT:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  Yes, your application is refused and we wish you more success when you are released in March with your rehabilitation.

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