R v Spottiswood

[1996] QCA 299

[1996] QCA 299

COURT OF APPEAL

DERRINGTON J
MACKENZIE J
WHITE J

CA No 178 of 1996

THE QUEEN

v

SPOTTISWOOD, Neil Ross  Applicant

BRISBANE

FRIDAY, 2 AUGUST 1996

JUDGMENT

WHITE J:  The applicant for leave to appeal against sentence was convicted by a jury of one count of unlawful possession of a motor vehicle in the District Court at Gympie on 18 April 1996.  He was sentenced that day to 18 months detention.  The offence occurred on 2 September 1995.  The applicant was then aged 45 years.  He did have a prior criminal history, mostly relating to possession of cannabis and a utensil which had been dealt with in the Magistrates Courts.  His only dishonesty offence was that of giving a false name and address in relation to a drink driving offence and being unlicensed in July 1977.

The circumstances of the offence were these.  The vehicle, a Holden sedan, was owned by Esanda Finance Corporation and was registered under the number of 115-VWP.  This vehicle had been repossessed by Esanda on 5 July 1995 and was being kept in a holding yard in the premises of a panel shop in Gympie.  The vehicle was taken from these premises on the night of 14-15 August 1995.  The police received certain information and on 2 September 1995 went to the applicant's residence where they located a white Holden Commodore bearing registration plates with the number 311-CIM.  They spoke to the applicant about the car and he said that he'd recently had his car repaired and that the engine and running gear was from his car but a new body had been put on it.  The police then made a note of the engine number and chassis number.

The accused did own a white Holden registered in his name with that number.  The car located at the applicant's residence had an engine number from Esanda's vehicle, compliance plate number from the applicant's vehicle, a body number of Esanda's vehicle and a registration label with some numbers scratched out but principally consistent with the registration plate from the Esanda vehicle.  In other words, it was substantially Esanda's vehicle.

The applicant was interviewed but answered no questions about the vehicle.  At trial he told a story which was clearly not accepted by the jury.  The vehicle was returned to Esanda who subsequently sold it for approximately $3,000.  There was not said by the prosecutor to be any loss to Esanda due to the applicant's dealing with the car, save for a dent which was repaired at a cost of $238.

The learned sentencing Judge expressed, if I might say with respect, rather forcefully that the applicant had told the jury a totally unbelievable story.  His Honour said that the offence had the hallmark of professionalism and that the applicant was a protagonist, if not the protagonist of the theft of the motor vehicle.  He said in those circumstances a deterrent element was an important fact in relation to an offence such as this, and he did not believe that the applicant had shown any remorse.  He said that he was unable to sentence the applicant as a first offender and his impliedly poor response to community service in the past meant that a custodial sentence was the only appropriate course.

Certain personal circumstances of the applicant were laid before His Honour including his role as a sole custodial parent and his past ill health which had interfered with his performance of community service.  His Honour said there was nothing in the personal circumstances of the applicant which affected the quantum of the sentence.

As can be seen, the learned sentencing Judge took a very poor view of the applicant.  He had enjoyed the singular advantage of seeing him give evidence in the witness box in the trial which had just concluded before him and so was better placed than many Judges who are sentencing after a plea of guilty of evaluating the person that he was about to sentence.

The applicant contends that the learned sentencing Judge erroneously concluded that he had a bad community service record when, in fact, he has carried out some 252 hours in the past.  He submits that there was no basis for taking into account, as a previous dishonesty offence, the false name in 1977 in sentencing on this occasion, and he submits that there was no basis for concluding that he had exaggerated his cancer symptoms, and finally that the changes to the car could not reasonably be described as professional.

He submits that insufficient weight was given to his role as a sole parent to his daughters for some four years, and since October 1995 his role as sole parent to his older daughter who is still at high school.  The applicant had had a good work history until he became responsible for his daughters' welfare when he went on a pension and had offered in the past financial support to his children.  He submitted that the learned sentencing Judge should have then thought that there was real hope for his reformation.

There may well be something to be said for the submission that the applicant's previous criminal record was described as more significant than, on perusal, it seems to be, particularly the 1977 false name and address offence as an example of past dishonesty and certainly the applicant had performed a great many hours of community service in the past, it would seem.  It cannot, however, be said that those matters infected the sentencing discretion of the learned sentencing Judge.

When one looks at the two comparable sentences of Preston and Williams which have been put before the Court by Mr Meredith for the Crown, it would appear that the sentence of 18 months for the serious offence of possession of the motor vehicle which was involved here, together with the previous criminal record and the age of this offender, was well within the range of a sound sentencing discretion.  Accordingly, I would refuse leave to appeal, and dismiss the application.

DERRINGTON J:  I agree.

MACKENZIE J:  I agree.

DERRINGTON J:  The order of the Court is that the application is refused.