R v Story

[1993] QCA 50

[1993] QCA 050

COURT OF APPEAL

MACROSSAN CJ
PINCUS JA
McPHERSON JA

THE QUEEN

v.

ANTHONY ROSS STORY

BRISBANE

..DATE 26/02/93

THE CHIEF JUSTICE: The applicant seeks leave to appeal against a sentence imposed upon him on a charge of breaking, entering and stealing, when he was found guilty after trial.  The sentence imposed was a four year term of imprisonment concurrent, however, with a sentence already being served, restitution in the sum of $6,681.50 to be made within three years of release from prison, and an order for disqualification of his driver’s licence for 10 years.

There are some difficulties in the applicant’s submissions.  He has a criminal history which is quite extensive. On the sheet before us, it starts in the year 1982. There are a number of offences of dishonesty and also it’s relevant to say, offences relating to motor vehicles, such as unlicensed driving and driving under the influence.

Early on, the applicant was placed on probation.  That happened in 1983.  Closer to the time we’re concerned with, it appears that in April 1990 he was sentenced to four years’ imprisonment in respect of an armed robbery in which he participated.  It was recommended at that time that he be considered for parole after serving 12 months.

The facts of the present case, briefly stated, are that in the middle of the night, in the suburb of Capalaba, premises were broken into and property valued in excess of $6 000  was stolen and  damage to the extent of $180 was caused.  Security officer saw two offenders drive off, and the departing vehicle was followed and police intervened. 

The applicant was found in the driver’s seat of the vehicle with one companion.  There were sewing machines, sewing machine parts, cotton and a bricklayer’s hammer in the car.  The applicant’s companion pleaded guilty to the charge but the applicant did not, although he was eventually found guilty.

The sentencing judge - it is obvious from his remarks - was determined to treat the applicant as leniently as was appropriate in view of the circumstances.  He was motivated to some extent, it seems, by the recent penalties and sentences legislation which had been passed.  In respect of the sentence imposed and it’s effect - that is, the sentence of imprisonment - it’s not possible to say that it had any harsh element, in my opinion.

The judge noticed that for the last 10 years or so, the applicant had demonstrated disregard for the rights of others in property, and that was a statement fully justified.  He was influenced, in the sentence that he imposed, by the facts that the applicant at the time of its commission was on parole.  He, that is , the sentencing judge, deliberately decided not to order a cumulative term of imprisonment, although there was certainly justification for giving serious consideration to such a course.

The effect of the order which he imposed, in the cicumstances that operated, was that the eligibility for parole date applicable otherwise in the applicant’s case was merely deferred for an additional eight months.  The order for restitution, which was made by the sentencing judge, is not challenged by the applicant in his arguments which he, appearing on his own behalf, put before us.

He did, in his submissions, raise some objection to the period of 10 years’ disqualification which had been ordered, saying that he considered that when he was released from custody and engaged himself in work - and he seems at the moment to favour working as a sign writer - he would be inconvenienced from lack of a licence.

It’s pointed out to us - and the judge below had in mind that applications for removal of a disqualification can be made during the term of disqualification.  In fact, counsel tells us that after two years such an application can be made, and on such occasions any dislocation of an applicant’s work due to lack of a licence can be taken into account. 

It seems to me, at least possible, that although that 19 years’ period of disqualification does, on the face of it, seem lengthy the sentencing judge may have been conscious that in other ways in respect of the overall sentence he was imposing, he was dealing with the applicant leniently and may have felt to an extent that the applicant was getting, as it were, a merciful trade-off in terms of a period of imprisonment that the judge might otherwise have felt free to order.

It’s also relevant to mention that the applicant has been involved over the years, as I have already briefly indicated, in a number of offences relating to the use of motor vehicles and that can be regarded as further justification for the judge acting in the way he did in respect of the disqualification.  We are justified in interfering, of course, only if manifest excessiveness in the sentence is demonstrated.  And speaking for myself, I do not believe that that can be said and I refuse the application.

PINCUS JA : I agree.

McPHERSON JA: I also agree.

THE CHIEF JUSTICE: The application is refused.

BRISBANE

... DATE

JUDGMENT