R v Stratford

[2005] QCA 78

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stratford [2005] QCA 78

PARTIES:

R
v
STRATFORD, Mark Leslie
(appellant/applicant)

FILE NO/S:

CA No 411 of 2004
DC No 13 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Warwick

DELIVERED EX TEMPORE ON:

22 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2005

JUDGES:

McPherson and Keane JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.     Appeal against conviction dismissed
2.     Application for leave to appeal against sentence        dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - appellant convicted of stealing after trial - appellant did not give evidence at trial - appellant alleged that evidence of other witnesses was false - whether it was open to the jury to find the appellant guilty on the available evidence

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - PROPERTY OFFENCES - appellant sentenced to serve whole of suspended sentence previously imposed - sentenced to 15 months imprisonment to be suspended after 158 days - property stolen was of significant value - appellant had significant criminal history - whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 22

MFA v The Queen (2002) 213 CLR 606, cited
R v Antoniutti [2003] QCA 360; CA No 164 of 2003, 21 August 2003, cited
R v Phillips [2002] QCA 97; CA No 333 of 2001, 19 March 2002, cited

COUNSEL:

Appellant/applicant appeared on his own behalf

M J Copley for respondent

SOLICITORS:

Appellant/applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for respondent

McPHERSON JA:  I will ask Justice Keane to give the first judgment in this matter.

KEANE JA:  The appellant was convicted, after a trial, on 10 November 2004 on two counts of stealing.  The offences were committed between 3 October 2003 and 3 November 2003.  He was sentenced to two years imprisonment on each count to be served concurrently, suspended after 15 months with an operational period of three years.  Further it was ordered that a previously imposed sentence which had been suspended be reactivated for a period of nine months and 19 days to be served concurrently with the sentences imposed on 10 November 2004.  The appellant appeals against the conviction and seeks leave to appeal against the sentence.

By way of background to the case, the appellant and his partner, Mia Wallace, were found guilty of having stolen a drott and a tractor, the property of Mr Charnock, from a property at Kogan.  They were also found guilty of having stolen a quantity of farming equipment, also the property of Mr Charnock, from the property at Kogan.

The appellant did not give evidence at the trial. His defence to the charge, being an honest claim of right under s 22(2) of the Criminal Code, was raised by assertions in an interview with the police on 4 November 2003.  There the appellant said that, in the course of negotiations with a Mr Gibbons in relation to the possible sale to the appellant and Ms Wallace by Gibbons's company of a farm property at Millmerran, Mr Gibbons agreed that, for no increase in the price which he was willing to accept for the Millmerran property, the appellant and Ms Wallace could take the chattels situated on the Kogan property which had been the subject of a sale by instalments to Mr Charnock in respect of which Mr Charnock was in default.  The appellant said that Mr Gibbons told him that "if you can move it, you can have it". 

This version of events was denied by Mr Clarence Gibbons in his evidence which was to the effect that on 17 October 2003 he discussed with the appellant and Ms Wallace the possible sale to them of the Millmerran land.  Mr Gibbons denied giving the appellant and Ms Wallace permission to take the vehicles and equipment in question.  Mr Clarence Gibbons' son, Timothy Gibbons, also denied the appellant's version of events. 

The evidence of Messrs Gibbons is said by the appellant to be false.  Their evidence was, however, uncontradicted.  It was inherently probable.  It was supported by the contemporaneous evidence of the draft contract of sale for the Millmerran property prepared after the discussions with the appellant and Ms Wallace.  The draft contract, under the heading, "Other chattels included in sale" was filled in "nil" and in any event no contract for the sale of the Millmerran land was concluded by the appellant and Ms Wallace.  It was therefore plainly open to the jury upon the whole of the evidence to be satisfied beyond a reasonable doubt that the appellant did not take the property in question pursuant to an honest claim of right and that he was therefore guilty of the offences charged: see MFA v The Queen (2002) 213 CLR 606 at 614 - 615, 624.

The appellant points to inconsistencies between the evidence of Mr Gibbons and his son and in the various versions of the events given by Mr Clarence Gibbons over time.  But these inconsistencies concern peripheral matters of little significance.  They concern such readily explicable errors as Mr Clarence Gibbons telling investigating police that he had been under the impression that the appellant and Ms Wallace had been interested in purchasing the land at Kogan rather than Millmerran.  It was also argued that Mr Clarence Gibbons said to investigating police that if the machinery became his to sell at some later stage he would consider selling it to the appellant and Ms Wallace, but that does not make it probable that he told them on 17 October that they could take it when he did not at that stage own it and they had not signed a contract to buy the Millmerran property, much less paid anything in respect of it.

In any event these inconsistencies were drawn to the attention of the jury by the learned trial Judge.  What should have been made of these inconsistencies, if anything, was for the jury to determine; but on any view of the evidence, there was a strong Crown case that, in taking the vehicles and equipment in question, the appellant knew that he was not acting honestly and that he had no claim to the property.  The appellant has not demonstrated any reason to doubt that the jury's verdict was correct.

As to sentence, the learned sentencing Judge held that the appellant should be required to serve the whole of a suspended sentence passed on him on 16 February 2001, when he was convicted of offences of robbery and wilful damage to police property and was imprisoned for 15 months suspended after serving 158 days with an operative period of three years.

The appellant was born on 9 November 1969 and so was 33 years of age when the offences were committed. 

The learned sentencing Judge described the stealing offences as "bold".  This description was quite apt, as indeed it was for the appellant's attempt to deny criminal responsibility for the theft when interviewed by the police on 4 November 2003.

The property stolen was of significant value. 

The appellant has a criminal history which affords a real basis for concern, particularly in that he committed these offences while the subject of a partly suspended sentence for robbery with personal violence and other offences.  The robbery offence, for which the appellant had been sentenced on 16 February 2001, followed some earlier drug offences which occurred when the appellant was much younger.

On the appellant's behalf it was submitted that an appropriate sentence would be 18 months imprisonment suspended after nine months with an operational period of 18 months.  It is now urged for the appellant the difference between the sentence imposed on him and that imposed on Ms Wallace suggest that the sentence imposed on him was excessive.  

In this regard, the learned sentencing Judge sentenced Ms Wallace to 12 months of imprisonment on each count, to be served concurrently, and ordered that the whole of those terms of imprisonment be suspended for an operational period of two years.  The learned sentencing Judge extended this degree of leniency to Ms Wallace on the footing that she was the main carer of her young child and that she was only 18 at the time when the offences were committed.  She was only 19 years of age at the time of sentence.  Further, she had no criminal history.  These circumstances adequately explain the difference in the sentences imposed on Ms Wallace and the appellant. 

In my opinion, the sentence imposed was well within the appropriate range: see R v Antoniutti [2003] QCA 360, R v Phillips [2002] QCA 97. Indeed, having regard to the appellant's record, the circumstances of the offence and the absence of any indication at all of any remorse the sentence could well have been more severe. There is, in my view, no serious basis for the suggestion that it was excessive.

In conclusion I would dismiss both the appeal against conviction and the application for leave to appeal against sentence.

McPHERSON JA:  The function of this Court on an appeal from the verdict of a jury is very limited.  It does not lie within our power to set aside a verdict unless it is clearly unsupportable having regard to the evidence at the trial.  This was not the case here.  For the reasons given by Justice Keane I would dismiss the appeal against conviction and also dismiss the application for leave to appeal against sentence.

FRYBERG J:  I agree with what has been said by my colleagues.

McPHERSON JA:  The order is that the appeal against conviction is dismissed.  The application for leave to appeal against sentence is also dismissed.

‑‑‑‑‑