R v Small

[1998] QCA 380

COURT OF APPEAL

[1998] QCA 380

THOMAS JA
SHEPHERDSON J

JONES J

CA No 274 of 1998
THE QUEEN
v.

TERRY LOUIS SMALL

BRISBANE
..DATE 07/10/98
071098 D.1 T7-8/TW12 M/T COA254/98
JONES J: This is an application for leave to appeal against a
sentence of 18 months imprisonment with a recommendation for
consideration for parole after six months upon a conviction
for the unlawful use of a motor vehicle with circumstances of
aggravation.

The circumstances are that on 26 July 1997 the applicant removed a Ford station sedan from the Toombul Shoppingtown car park where it had been parked by its owner. He and another person used the vehicle for two days, removed from it some stereo equipment and then abandoned it in bushland. The stereo equipment was later recovered and returned to its owner.

The applicant's purpose in taking the vehicle, it seems, was simply to provide a convenient means of transport for him and his associate. When first questioned by the police the applicant denied involvement in the offence and after the police had made further inquiry he admitted his involvement.

His formal plea of guilt was made on 18 August 1988 when the matter had been set down for hearing. The applicant had indicated some five months earlier that he would plead guilty after the prosecution agreed to withdraw an associated charge.

He was therefore entitled to some allowance for an early plea, and it seems the sentencing Judge gave that in his recommendation for early consideration for parole.

The factors which appear to have weighed with the sentencing Judge in imposing the sentence of 18 months was the prevalence 071098 D.1 T7-8/TW12 M/T COA254/98

of this offence and the applicant's prior criminal history.

The prosecution suggested before the sentencing Judge that the tariff range for this offence for a person with the applicant's record was 12 to 18 months imprisonment. That assessment seems to me to be somewhat on the high side having regard to the decisions to which this Court was referred, namely The Queen v Ketu, The Queen v Preston, The Queen v Nant and The Queen v Grant. But it is pointed out that this offence carries a maximum penalty of 12 years imprisonment. Notwithstanding this fact, the offence remains quite prevalent in our community as His Honour observed.

The applicant is 40 years of age having been born on 31 October 1957. He has an extensive criminal record commencing when he was 18 years of age. These commenced with mainly driving and street offences and thereafter include drug offences and offences for dishonesty, the latter probably connected with satisfying his addiction to drugs and alcohol.

It is correct to say, as the sentencing Judge did, that the applicant has been treated leniently in respect of some earlier offences and that he complied with earlier probation and community service orders. He has served only a short period of previous imprisonment.

The report of Mr Grantham, clinical psychologist, was most helpful in providing an insight into the applicant's background, his successful and unsuccessful relationships and his attempts to rehabilitate himself, but the fact remains 071098 D.1 T7-8/TW12 M/T COA254/98

that the applicant continues to offend.

Given his age and extensive criminal record, it is entirely appropriate for the applicant to have been ordered to serve a period of imprisonment and that, in my view, should not have been less than a period of six months which is most likely the effective period of incarceration which will apply.

Had the sentence been for 18 months imprisonment without more, I may have come to the view that that exceeded the bounds of discretion in the circumstances of this case, but with the recommendation for parole after the six months imprisonment the sentence cannot, in my view, be said to be manifestly excessive. I would disallow the appeal.

THOMAS JA: I agree.

SHEPHERDSON J: I agree with the orders proposed by Mr Justice
Jones and the reasons which he has given.

THOMAS JA: The order of the Court will be application refused.

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