R v Suthern

[1992] QCA 320

COURT OF APPEAL [1992] QCA 320

FITZGERALD P
PINCUS JA

THOMAS J

CA No 191 of 1992

THE QUEEN

v.

STANLEY SUTHERN	Applicant
BRISBANE ..DATE 11/08/92
JUDGMENT
110892 THE PRESIDENT: Mr Justice Pincus will deliver the first judgment.

PINCUS JA: This is an application for leave to appeal against sentence. The offences in question which were committed in March 1991 were breaking, entering and stealing and wilful damage.

The circumstances were that the applicant with the assistance of one Baker demolished a gate for the purpose of breaking into a jewellery shop which was done with the assistance of a brick put through the window. According to the evidence the police then came to investigate the matter, and the applicant came to the shop, and apparently pretended to be an interested bystander.

The basis of the attack on the sentence which was two years for the breaking, entering and stealing and six months for the wilful damage, is essentially that the applicant had had a fairly crime-free record for quite some years until not long before the offences were committed, which, as I have mentioned, was in March 1991.

He was born in 1952 and until he was about 24 years of age he committed quite a number of offences, including some involving dishonesty. There was then a gap of about 14 years until 1990, and in the last few years he has committed a few offences which might be called "street offences" - behaving in a disorderly manner, breach of the Bail Act, obscene language and the like.

Counsel for the applicant suggests that the circumstances of the offence were such that the penalty of two years was excessive if one has regard to this fairly long crime-free period. The case was one in which the applicant pleaded not guilty, gave no evidence, and showed no remorse. The jewellery shop had taken from it about 17 watches. The watches were apparently disposed of in some fashion, and some were recovered, but there was a substantial deficiency. The total value of the property taken was in the region of $2,000.

At the time of the offences the applicant was affected by alcohol. However, the Judge was entitled to think that the commission of the offence was at least in some degree premeditated, because it appears that the applicant had some time before the offence been interested in a particular watch in the shop.

During the course of the hearing, the Judge mentioned that the applicant had been charged with and acquitted of a very similar offence - similar in the sense that it involved the very same shop - and it seemed to be suggested at one stage by the applicant that the Judge should not have taken that into account. Certainly, the Judge was not entitled to assume that the applicant was other than properly acquitted of the previous charge, but it seems to me that there was nothing improper in His Honour noticing that the applicant had, in a sense, a warning or a reason - a special reason to be wary of committing this offence, having previously been in trouble in relation to those premises.

What the Judge said was that the offence was a prevalent one and that is not disputed. He also described it as being a case which called for a condign punishment, in the circumstances, and he said, in effect, that that was due to the necessity for deterrence. It seems to me that the case might be described as a fairly ordinary "smash and grab". There was nothing especially unusual about it so as to require a condign punishment. However, the sentence of two years which was imposed could not, in my opinion, be thought to be beyond the permissible range.

It is true that His Honour might perhaps have taken a more lenient view, in view of the long crime-free period to which I have referred, but, in the circumstances, it seemed perhaps almost inevitable that there would be a custodial sentence. It is difficult, in my view, to conclude that the total of two years, that is the two years for the break and enter, and the six months concurrent for damaging the gate, is manifestly excessive.

The case is therefore one in which a relatively ordinary offence has been fairly substantially punished. The reason for it, as it seems to me, must have been the absence of any sign of remorse, the rather brazen nature of the offence, in the circumstances, and the criminal record. Although it is true that the criminal record is of a character which I have described, that is containing a very large gap, I think the Judge was entitled to have regard to it in fixing the sentence.

I have therefore come to the conclusion that although the sentence was not, in the circumstances, a light one, it cannot be interfered with, and I would dismiss the application.

THOMAS J: I agree.

THE PRESIDENT: I agree. The application is refused.

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